eco|Driver® Managed Service Agreement (associated contract) THIS AGREEMENT is dated ……….. PARTIES: 1. …………………………………….. whose registered office is at …………………………….. ……………… ……………… …………… (the “customer”); and 2. TR Control Solutions whose registered office is at Hersham Place Technology Park, Molesey Road, Hersham, Walton-on-Thames, Surrey KT12 4RZ (“TRCS”) WHEREAS: a) TRCS will supply the customer with the eco|Driver® managed service in accordance with the terms set out in this Agreement. b) The price payable shall be set out under the ‘Pricing’ section 1 DEFINITIONS 1.1 The definitions and interpretations of certain words in this document are found in Appendix Four. Both parties shall read this Agreement in a manner consistent with such definitions and interpretations. 2 AGREEMENT TO SUPPLY THE SERVICE 2.1 TRCS will supply the eco|Driver® Managed Service on the terms and conditions of the agreement for the Service which comprises: (a) the Pricing Schedule (as annexed hereto); and (b) the Hosting Services Description (as annexed hereto); and (c) the Support Services Description (as annexed hereto); and (d) these Terms (e) the eco|Driver® Proposal 2.2 With regard to the Set-up of eco|Driver®, the date specified by TRCS is an estimate only. Time for this shall not be of the essence of the contract and TRCS shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the set-up of the service. 2.3 The minimum term for eco|Driver® contract is 12 months. The customer can contract for a longer term if it so wishes. The committed term of this contract is….[NUMBER OF MONTHS/YEARS] Page 2 of 28 2.4 The Service Start Date for this Managed Service Agreement is [DATE] 2.5 A final copy of this Agreement will be supplied once the Service Start Date is confirmed. In the event that the customer wishes to reject the Service Start Date, the customer must inform TRCS within five working days. 2.6 In the event that implementation of eco|Driver® is started but delayed, and the delay is within the customer’s remit, TRCS will send a final copy of this Agreement containing a Service Start Date to the customer. In the event that the customer wishes to reject the Agreement, the customer must inform TRCS within five working days. 2.7 The Installation Warranty for eco|Driver® under this Agreement expires after 30 days from the Service Start Date. In the event that the customer requires on-going hardware support and/or maintenance the customer must arrange for this to be provided by a third party approved installer as this is not provided by TRCS (see clauses 3.5 and 6.2). The customer may contact the company who installed eco|Driver® associated hardware (or provides third party services) for a separate agreement for maintenance and support or for ad hoc support as required. 3 SERVICE 3.1 The customer wishes to purchase from TRCS and TRCS wishes to provide the eco|Driver® Managed Service (the “Service”) in accordance with these terms. Where the customer reasonably believe that the Service is unavailable: (a) the customer shall promptly contact TRCS and provide sufficient details of the alleged non-availability of the Service to enable TRCS to investigate matters raised (“Fault”); (b) TRCS shall investigate the Fault, which may include discussions with any relevant Supplier and logging the fault with that Supplier; (c) the customer must provide any further information that becomes known to them that may assist TRCS or the Supplier in investigating the Fault. 3.2 For the avoidance of doubt, a Fault (as defined in this clause 3.1) may include an alleged non-availability of the Service resulting from an Intervening Event, in which circumstances an Intervening Event shall be subject to all the provisions for a Fault as set out in this clause 3.1. 3.3 Without prejudice to any rights available under this Agreement, the customer agrees and acknowledges that the above rights detailed in this clause 3.1 are their sole remedy in the circumstances and that the Service will be provided solely pursuant to the Service Description for the Service. 3.4 Where the service is unavailable due to a fault and that fault is within the jurisdiction of TRCS, TRCS may, on their discretion, pay a service rebate based upon the daily cost of the service multiplied by the number of days that the service was unavailable. 3.5 If TRCS determines that the fault is associated with any third party equipment installed on-site, with the customer’s own network or with a third party’s data Page 3 of 28 capture, formatting and transmission system, whilst TRCS may investigate and recommend a solution, they are not obliged to do so under this agreement, even if the said third party hardware or service was installed or activated as part of the original implementation under the auspices of TRCS. 4 THE CUSTOMER’S USE OF THE SERVICE 4.1 TRCS will supply the Service from the Service Start Date found in clause 2.4. 4.2 The customer must reasonably co-operate with TRCS to allow TRCS to establish and supply the Service to the customer safely and efficiently. 4.3 In using the Service, the customer must comply with all laws, all directions by a Regulator and all reasonable directions by TRCS. 4.4 The customer must not use, or attempt to use, the Service: (a) to break any law or to infringe another person’s rights; (b) to expose TRCS to liability; or (c) in any way which may damage any property or injure or kill any person 4.5 TRCS excludes liability for any unlawful activity or any unlawful event that eco|Driver® is used for by the customer or any of the customer’s Personnel. 4.6 The customer is responsible for all activity occurring under its User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with the customer’s use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. The customer shall: (a) notify TRCS promptly of any unauthorised use of any password or account or any other known or suspected breach of security; (b) report to TRCS promptly and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by the customer or its Users; and (c) not impersonate another eco|Driver® user or provide false identity information to gain access to or use the Service. 4.7 TRCS does not own any data, information or material that the customer submits to the Service in the course of using the Service ("Customer Data"). In the event this Agreement is terminated (other than by reason of the customer’s breach), TRCS will make available to the customer a file of the Customer Data within 30 days of termination if so requested at the time of termination. TRCS reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, the customer’s non-payment. Upon termination for cause, the customer’s right to access or use Customer Data immediately ceases, and TRCS shall have no obligation to maintain or forward any Customer Data. 4.8 The customer acknowledges that the Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic Page 4 of 28 communications. TRCS is not responsible for any delays, delivery failures, or other damage resulting from such problems. 4.9 The customer acknowledges that TRCS or a Supplier may be required to intercept communications over the Service and may also monitor the customer’s usage of the Service and communications sent over it. 4.10 TRCS may ask the customer to stop doing something which TRCS reasonably believes is contrary to clauses 4.4. The customer must immediately comply with any such request. If the customer does not, then TRCS may take any steps reasonably necessary to ensure compliance with clauses 4.4 or the request. 4.11 To enable TRCS to perform its obligations under this Agreement the customer shall: (a) provide TRCS with any information reasonably required by TRCS to perform its obligations under this Agreement; (b) obtain all necessary permissions and consents which may be required before the commencement of the services; and (c) comply with such other requirements as may be set out in the Current Product Data Sheet or otherwise agreed between the parties. 4.12 The customer shall be liable to compensate TRCS for any expenses incurred by TRCS as a result of the customer’s failure to comply with clause 4.11. 4.13 The customer shall indemnify TRCS against all claims, costs and expenses which TRCS may incur and which arise, directly or indirectly, from the customer’s breach of any of its obligations under this Agreement, including any claims brought against TRCS alleging that any goods and/or services provided by TRCS in accordance with the Current Product Data Sheet infringes a patent, copyright or trade secret or other similar right of a third party. 5 LICENCE GRANT AND RESTRICTIONS 5.1 TRCS hereby grants the customer a non-exclusive, right to use the Service for its internal business operations, subject to the terms and conditions of this Agreement. All rights not expressly granted to the customer are reserved by TRCS. The customer shall not: (a) modify or make derivative works based upon the Service or the Content; (b) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (c) reverse engineer or access the Service in order to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics of the Service; or (iii) copy any ideas, features, functions or graphics of the Service. Page 5 of 28 5.2 User accounts cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. 5.3 The customer must ensure that the Service is only used for its intended purpose and must prevent the following from occurring: (a) sending or storage of material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (b) interference with or disruption to the integrity or performance of the Service or the data contained therein; or (c) attempts to gain unauthorized access to the Service or its related systems or networks. 6 MAINTENANCE 6.1 Maintenance may be conducted on the Service or a Supplier Network. TRCS will try to ensure that scheduled maintenance is conducted outside normal business hours but may not always be able to do so. As and when TRCS is made aware of any maintenance to be carried out to the Service or a Supplier Network it will inform the customer. 6.2 TRCS is not responsible for rectifying any fault in the Service where the fault arises in or is caused by any equipment or facilities beyond the communication end points provided by the Service and specifically for any third party equipment installed on-site, with the customer’s own network or with a third part’s data capture, formatting and transmission system, even if the said third party hardware or service was installed or activated as part of the original implementation under the auspices of TRCS.. 7 INVOICES AND PAYMENT 7.1 TRCS will invoice the customer for the Charges from the Service Start Date, for 12 months in advance and thereafter at every anniversary of the Service Start Date for the period of the Committed Term. The customer must pay the invoice within 30 days of the date of the invoice unless otherwise stated on the relevant quotation, subject to billing disputes under clause 8. 7.2 TRCS may re-issue any invoice if an error is later discovered. In the case of overpayment by the customer, the customer’s account will be credited or, where the customer no longer acquires eco|Driver® from TRCS, TRCS will refund the overpayment within 30 days of the customer’s request and after deduction of any other amounts due by the customer to TRCS. 7.3 If the customer does not pay any amount invoiced by the due date (except any amount which is validly disputed under clause 8), then TRCS may charge the customer a late fee of 1% per month calculated on the daily balance of the unpaid amount from the due date until the date. This is an independent obligation which applies before and after judgment. The customer must also pay TRCS’s reasonable expenses incurred recovering payment from them. Page 6 of 28 7.4 The customer may not withhold, deduct or set-off any amount from or against any payment due by them to TRCS in any circumstances. TRCS may withhold or deduct from or set-off against any amount which TRCS must otherwise pay or credit to the customer any amount payable by the customer to TRCS. 8 BILLING DISPUTES 8.1 The customer may dispute an amount invoiced by TRCS but only if done so in accordance with this clause 8. 8.2 Except to the extent the customer raises a valid billing dispute in respect of a TRCS invoice, the customer agrees that the invoice is valid and payable (and the customer must pay any undisputed amount included in the avoidance in accordance with clause 7.1) 8.3 To raise a valid billing dispute, the customer must (d) make a good faith request to TRCS to investigate the specific charges or invoice, providing at the same time specific evidence which demonstrates that a particular charge or invoice is incorrect; and (e) make any such request to TRCS within 12 months of the date of the relevant invoice. 8.4 The customer may only make a claim or commence proceedings alleging that any charge or invoice is incorrect, or the customer is entitled to a refund for overpayment, if the customer does so within 12 months of the date of invoice or overpayment. 8.5 If the customer raises a valid billing dispute, then TRCS will conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. At the end of these investigations, the customer will pay any outstanding amount (together with interest on that amount calculated in accordance with clause 7.3 from the original due date for payment) within 30 Business Days if in TRCS’s reasonable opinion it is concluded that the charge or invoice amount is valid and TRCS can provide sufficient evidence to establish this. 9 PRICING 9.1 The price for the supply of eco|Driver® is set out in Appendix 1 of this Agreement. The Charges shall accrue from no later than the Service Start Date. 10 TAXES 10.1 All Charges quoted in the Agreement and the Proposal are quoted exclusive of taxes and the customer shall pay such taxes in addition to the Charges. 10.2 TRCS will issue the customer with a valid tax invoice in respect of each taxable supply. Page 7 of 28 11 THE CUSTOMER’S RIGHT TO CANCEL 11.1 The customer may cancel the Service immediately and without liability: (a) At any time after the Committed Term, by giving 60 days’ notice to TRCS; and (b) At any time by giving TRCS notice if: (i) TRCS breaches a material term of the Agreement and that breach is not capable of remedy; or (ii) TRCS breaches a material term of the Agreement and that breach is capable of remedy but TRCS does not remedy that breach within 30 days after the customer gives TRCS notice requiring them to do so; or (iii) An administrator receiver or administrator is appointed over any of the undertaking property or assets of TRCS; or (iv) TRCS goes into liquidation, except for the purpose of amalgamation or reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assumes the obligations imposed on TRCS under the Agreement. 11.2 The customer may cancel the Service or one or more Individual Services before the end of the Committed Term by giving 60 days' notice to TRCS but the customer will be required to pay a Cancellation Fee in accordance with clause 14.1. 12 TRCS’S RIGHT TO SUSPEND OR CANCEL 12.1 TRCS may, without liability, cancel the Service or one or more Individual Services at any time after the Committed Term by giving 60 days' notice to the customer. 12.2 TRCS may, without liability, immediately cancel or suspend or downgrade the Service or one or more Individual Services at any time if: (a) doing so is necessary to allow a Supplier to repair, maintain or service any part of a Supplier Network used to supply the Service or the Individual Service; or (b) the customer breaches clause 4 (Use of the Service) or otherwise misuses either the Service or an Individual Service; or (c) TRCS reasonably suspects fraud by the customer or any other person in connection with the Service or an Individual Service; or (d) any amount owing to TRCS is not paid by it due date as specified in clause 7.1, TRCS gives the customer written notice requiring payment of that amount (which TRCS may not give in respect of an amount which is validly disputed in accordance with clause 8 (Billing Disputes) until after TRCS has completed the investigations referred to in clause 8.5) and the customer fails to pay that amount within 30 Business days after TRCS gives the customer that notice; or (e) the customer breaches a material term of the Agreement (other than a breach which separately gives rise to rights under this clause 12.2) and that breach is not capable of remedy; Page 8 of 28 (f) the customer breaches a material term of the Agreement (other than a breach which separately gives rise to rights under this clause 12.2) and that breach is capable of remedy, the customer does not remedy that breach within 30 days after TRCS gives notice requiring them to do so; or (g) TRCS is required to do so to comply with any applicable laws, an order, instruction or request of a Regulator, an emergency services organisation or any other competent authority; or (h) TRCS is prevented from supplying the Services or an Individual Service due to a direction from any competent authority; or (i) the customer suffers an Insolvency Event. 12.3 TRCS may, without liability, immediately suspend, terminate or cancel the Service or one or more Individual Services at any time if TRCS is entitled to (or does) suspend, terminate or cancel any other service supplied to the customer, or is entitled to (or does) terminate. 12.4 TRCS may also cancel the Service or one or more Individual Services if: (a) the Service or that Individual Service is suspended for more than 30 days; or (b) any Intervening Event prevents the supply of the Service or that Individual Service in accordance with the Agreement for more than 30 days. 12.5 TRCS may exercise its rights under clauses 12.2 and 12.4 immediately by giving notice to the customer, unless otherwise set out in the Agreement. However: (a) during an Intervening Event TRCS may be precluded from giving notice; and (b) if TRCS intends to exercise its rights under clause 12.2 as a result of circumstances referred to in 12.2(b) or 12.2(i), then TRCS shall give the customer reasonable notice before cancelling the Service or one or more Individual Services or suspending the Service or one or more Individual Services. 13 CONSEQUENCES OF SUSPENSION 13.1 If the Service or an Individual Service is suspended in accordance with the Agreement, then the customer will not be liable to pay any Charges for the Service or the Individual Service while it is suspended but otherwise the customer must pay all Charges arising before suspension in accordance with the Agreement. 13.2 TRCS will stop the suspension of the Service or Individual Service within 14 days of the reason for that suspension having stopped. 14 CONSEQUENCES OF CANCELLATION 14.1 If the Service or Individual Service is cancelled in accordance with clause 12.2, 13.2(b), 13.2(c), 13.2(d), 13.2(e), 13.2(f) or 13.2(i) during the Committed Term the customer must pay a Cancellation Fee as set out in the Pricing Schedule. Page 9 of 28 14.2 The customer acknowledges and agrees that if the Service or an Individual Service is cancelled in accordance with the Agreement then: (a) The Cancellation Fee represents a genuine pre-estimate of the loss TRCS will suffer and is not a penalty; (b) The customer must continue to pay the Charges if: (i) TRCS continues to supply the Service or the Service remains activated; and (ii) The customer continues to use the Service; and (c) TRCS may invoice the customer for all Charges for the Service or Individual Service that have not been previously invoiced and the customer must pay to TRCS all amounts specified in that invoice, and all other unpaid amounts relating to that Service or Individual Service, within 45 days of the date of that Invoice. 14.3 On cancellation of the Service for any reason: (a) Each party must, on request by the other person, immediately return or destroy the other party’s Confidential Information, except to the extent that it is required by law to retain the other party’s Confidential Information; (b) TRCS may immediately stop supplying the Service and all Individual Services to the customer; (c) Unless otherwise permitted by TRCS in writing, the customer must immediately stop using the Service (including all Individual Services) acquired under the Agreement; (d) Unless the Agreement expressly states otherwise, each person’s accrued rights and obligations are not affected; and (e) The parts of the Agreement which are by their nature intended to survive cancellation of the Service will do so. These include clause 7 (Invoices and Payments), clause 8 (Billing Disputes), clause 10 (Taxes), this clause 14 (Consequences of Cancellation), clause 16 (Customer’s Rights against TRCS), clause 17 (Intellectual Property), clause 18 (Confidentiality), clause 21 (Assignment and Subcontracting) and clause 23 (General) and any other provision of the Agreement to the extent necessary to give effect to them. 14.4 Without prejudice to any other rights to which TRCS may be entitled, the customer shall be required to pay TRCS the full amount of any third party costs to which TRCS has committed as agreed damages (not as a penalty) where the customer unlawfully terminates or cancels the services agreed to in the Current Product Data Sheet. In respect of cancellations on less than five working days’ written notice, the customer shall be required to pay TRCS the full amount of the services contracted for as set out in the Current Product Data Sheet and the customer agrees that this is a genuine pre-estimate of TRCS’s losses in such a case. For the avoidance of doubt, this clause applies to the customer’s failure to perform its obligations as per clause 4.12 of this Agreement. 15 ALTERATIONS TO THE CURRENT PRODUCT DATA SHEET Page 10 of 28 15.1 The parties may at any time mutually agree upon and execute new Product Data Sheets. Any alterations in the scope of goods and/or services to be provided under this Agreement shall be set out in the Current Product Data Sheet, which shall reflect the changed goods and/or services and price and any other terms agreed between the parties. 15.2 The customer may at any time request alterations to the Current Product Data Sheet by notice in writing to TRCS. On receipt of the request for alterations TRCS shall advise the customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties. 15.3 Where TRCS gives written notice to the customer agreeing to perform any alterations on terms different to those already agreed between the parties, the customer shall advise TRCS by notice in writing whether or not it wishes the alterations to proceed. 15.4 Where TRCS gives written notice to the customer agreeing to perform alterations on terms different to those already agreed between the parties, and the customer confirms in writing that it wishes the alterations to proceed on those terms, the Current Product Data Sheet shall be amended to reflect such alterations and thereafter TRCS shall perform this Agreement upon the basis of such amended terms. 16 CUSTOMER’S RIGHTS AGAINST TRCS 16.1 TRCS accepts liability to the customer in connection with the supply or interruption of the Service, any Individual Service and the Agreement, but only to the extent provided in this clause 16. Subject to clause 16.2, TRCS excludes any liability it might otherwise have to the customer in connection with the Agreement, the Service or any Individual Service. 16.2 TRCS accepts liability to the customer where not to do so would be illegal, or would make any part of this clause 16 void or unenforceable. Save for as otherwise set out in the clause 16, TRCS excludes all conditions and warranties implied into the Agreement and limits its liability for any nonexcludable conditions and warranties, where permitted by law to do so, to (at TRCS’s option) repairing or replacing the relevant goods, resupplying the relevant or equivalent services or, in either case, paying the customer the cost of doing so. 16.3 TRCS accepts liability for the customer’s Loss (excluding Consequential Loss) arising from personal injury to the customer or the customer’s Personnel to the extent it is caused or contributed to by a negligent act or omission of TRCS in connection with the Service. 16.4 TRCS accepts liability for the customer’s Loss (excluding Consequential Loss) arising from damage to the customer’s property or equipment to the extent it is caused or contributed to by a negligent act or omission of TRCS in connection with the Service. 16.5 TRCS accepts liability to the customer for Interruptions to Individual Services and the Service (including Interruptions caused by TRCS’s negligence) to the Page 11 of 28 extent the Interruptions are not caused or contributed to by Excluded Events, but only as follows: (a) By crediting to the customer a service rebate, in accordance with clause 3.4, validly claimed by the customer in accordance with the Agreement; (b) If TRCS credits the customer with a service rebate in accordance with 16.5(a), this is the customer’s sole remedy for TRCS’s acts or omissions (including negligence) leading up to the credit for Interruption to the Service. 16.6 TRCS’s liability for the customer’s Loss under or in connection with the Agreement or the Service (whether based in contract, tort (including negligence), statute or otherwise) is reduced to the extent that the customer’s acts or omissions or the customer’s equipment (or the acts, omissions or equipment of a third person, including a Customer or Supplier) cause or contribute to that Loss. 16.7 TRCS’s liability to the customer for Loss suffered or incurred by the customer in connection with the Agreement (whether based in contract, tort (including negligence), statute or otherwise) is limited to a maximum amount of £500 per incident or series of connected incidents. 16.8 Clause 16.7 does not apply in relation to death or personal injury due to negligence for which no limit applies. 16.9 TRCS excludes any liability to the customer for any Consequential Loss suffered or incurred by the customer in connection with the supply or Interruption of the Service or with the Agreement whatsoever (whether based in contract, tort (including negligence), statute or otherwise). 16.10 TRCS excludes liability in any event to the customer for any loss of business, loss of opportunity or any loss of profits or for any indirect or consequential loss or damage whatsoever This shall apply even where such a loss was reasonably foreseeable or where TRCS had been made aware of the possibility of the customer incurring such a loss. 16.11 TRCS excludes any liability for claims which may be made against Suppliers (whether based in contract, tort (including negligence), statute or otherwise). The customer indemnifies and will keep indemnified TRCS against any Loss suffered or incurred by TRCS in connection with a claim (whether based in contract, tort (including negligence), statute or otherwise) against a Supplier by the customer in connection with the supply or Interruption of any goods or services (including the Service and any Individual Services). 16.12 In the event that the customer or any third party, not being a sub-contractor of TRCS, shall omit or commit anything which prevents or delays TRCS from undertaking or complying with any of its obligations under this Agreement, then TRCS shall notify the customer as soon as possible and the following clauses shall apply: (a) TRCS shall have no liability in respect of any delay to the completion of any project; (b) If applicable, the timetable for the project will be modified accordingly; (c) TRCS shall notify the customer at the same time if it intends to make any claim for additional cost. Page 12 of 28 16.13 TRCS does not accept any liability for any loss associated with an interruption to the Service caused by any equipment or system beyond its jurisdiction specifically any loss caused by a fault with any third party equipment installed on-site, with the customer’s own network or with a third party’s data capture, formatting and transmission system. 16.14 Nothing in this Agreement shall exclude or limit TRCS’s liability for death or personal injury resulting from TRCS’s negligence or that of its employees, agents or sub-contractors. 17 INTELLECTUAL PROPERTY 17.1 TRCS alone owns all right, title and interest, including all related intellectual property rights, in and to the eco|Driver® technology, the content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the customer or any other party relating to the Service. 17.2 TRCS permits the customer to use this material, or other material licensed by TRCS, as part of the Service. This permission is subject to any conditions which TRCS may impose from time to time and will cease when the Service is cancelled. 17.3 This Agreement is not a sale and does not convey to the customer any rights of ownership in or related to the Service, the eco|Driver® technology or the intellectual property. The eco|Driver® name, the eco|Driver® logo and the product names associated with the Service are trademarks of TRCS, and no right or license is granted to use them. 17.4 The customer shall do all that is reasonably necessary to ensure that such rights found in this clause 17 vest in TRCS by the execution of appropriate instruments or the making of agreements with third parties. 18 CONFIDENTIALITY 18.1 TRCS and the customer each agree to keep confidential the other party’s Confidential Information. 18.2 Subject to clause 18.3, TRCS and the customer will not use or disclose the other’s Confidential Information for any purpose, other than to the extent necessary to perform its obligations or exercise its rights under the Agreement. 18.3 For clarity, TRCS may refer to the customer as a customer of TRCS in press releases, or in TRCS marketing sales or financial material or reports, subject to TRCS having obtained the customer’s prior written approval. 18.4 The obligations of confidentiality in this clause 18 do not apply to the extent disclosure is required by law or the listing rules of a stock exchange, a direction by government authority or a Regulator, or disclosure to professional advisors in connection with the Agreement. 19 INTERVENING EVENTS Page 13 of 28 19.1 If an Intervening Event occurs which affects the customer or any of the customer’s Personnel or TRCS or any of its Personnel and prevents the customer or TRCS (as the case may be) (“Affected Person”) from performing any of its obligations (other than an obligation to pay money) under this Agreement, then the Affected Person will not be liable for failing to perform that obligation. 19.2 The Affected Person must notify the other party promptly of the Intervening Event and use its best efforts to resume performance in accordance with the Agreement as soon as reasonably possible. The other party’s obligations continue during the Intervening Event. For the avoidance of doubt, TRCS will not charge the customer the Charges or any other charges for any Services or Individual Services not received during an Intervening Event. 20 PUBLIC ADDRESSING IDENTIFIERS 20.1 The Service may use one or more identifiers such as a telephone number, IP address or domain name (“Public Addressing Identifiers”). 20.2 The customer must comply with the requirements of any Regulator or other body which administers Public Addressing Identifiers. 20.3 The customer acknowledges and agrees that: (a) TRCS does not control the allocation of Public Addressing Identifiers; (b) TRCS is not liable to the customer if TRCS is required to change any Public Addressing Identifier as a result of any direction given by a Regulator or other body which administers Public Addressing Identifiers; and (c) On cancellation of the Service or any relevant Individual Service, the customer’s right to use any related Public Addressing Identifier may cease. 21 ASSIGNMENT AND SUBCONTRACTING 21.1 To the extent they are assignable, the customer may assign their rights under the Agreement as long as the customer has TRCS’s prior written consent. 21.2 To the extent they are assignable, TRCS may assign some or all of its rights under the Agreement to any person, as long as it has the customer’s written approval. 21.3 TRCS may perform any of its obligations under the Agreement by arranging for them to be performed by another person, including a Supplier, provided that TRCS remains responsible for providing the Service in accordance with this Agreement. 22 DISPUTE RESOLUTION 22.1 If any dispute arises in connection with the Agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet (either personally or via a telephone/video conference) in a good faith effort to resolve the dispute. Page 14 of 28 22.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in England and the language of the mediation will be English. The Mediation Agreement referred to in the Model Procedure shall be governed by, and construed and take effect in accordance with the substantive law of England. The courts of England shall have exclusive jurisdiction to settle any claim, dispute or matter of difference which may arise out of, or in connection with, the mediation. 22.3 If the dispute is not settled by mediation within 28 days of commencement of the mediation or within such further period as the parties may agree in writing, either party shall be entitled to terminate the Agreement and/or seek redress in the courts under clause 23.12. Neither party may commence any court proceedings in relation to any dispute arising out of the Agreement until it has attempted to settle the dispute firstly informally under clause 22.1 and secondly by mediation under clause 22.2 and either the mediation has terminated or the other party has failed to participate in the mediation, provided always that the right to issue proceedings under clause 23.12 is not prejudiced by unreasonable delay (meaning a delay exceeding 56 days). 23 GENERAL 23.1 This Agreement together with the Proposal contains the entire agreement between the parties relating to the subject matter. 23.2 The customer and TRCS must give notice under the Agreement to the other in writing. All notices, documents and other communications relating to this Agreement must be in writing and may be delivered by email or sent by facsimile transmission to the registered office of TRCS for the attention of a Director of TRCS or the customer as appropriate and any such notice shall be deemed to have been duly served upon and received by the party to whom it is addressed once a reply has been received by email or facsimile transmission. 23.3 The customer must provide a list of authorised operational contacts and provide any relevant details in relation to them to TRCS. The customer may change their authorised operational contacts by giving notice to TRCS providing all relevant details. The authorised operational contacts will have access to TRCS's support and maintenance staff for the Service, report faults and make requests for maintenance or support. 23.4 TRCS need not respond to requests from anyone other than authorised operational contacts and will not be liable for any consequences arising from compliance or non-compliance with any requests made by persons who are not authorised operational contacts. 23.5 If either party has a right arising out of a breach by the other of the Agreement and that party does not exercise that right, it does not waive: (a) that right unless it does so in writing signed; or Page 15 of 28 (b) its right to insist on performance of that or any other obligation at any other time. 23.6 If a provision of the Agreement is invalid, illegal, void, voidable or unenforceable for any reason, it will be severed and the remainder of the Agreement will not be affected and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid, illegal, void, voidable or unenforceable provision eliminated. 23.7 Each party must pay its own costs and expenses in respect of the Agreement and any agreement or document contemplated by the Agreement or required to give effect to it. 23.8 Without prejudice to any of TRCS’s obligations to the customer, TRCS will use its best endeavours to comply with any contractual obligations it has towards its Supplier(s) in order to ensure the continuity of the Service to the customer. 23.9 The customer acknowledges that: (a) nothing in the Agreement constitutes a relationship of employer and employee between the customer and TRCS; and (b) the customer has no right to bind TRCS in contract or otherwise. 23.10 TRCS and the customer are contractors independent of each other, and neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed to in writing by both parties. 23.11 TRCS may, in addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the customer and such engagement shall not relieve TRCS of its obligations under this Agreement or any applicable Current Product Data Sheet. 23.12 The Agreement shall be governed by and construed in accordance with the laws of England and subject to clause 20 the parties submit to the exclusive jurisdiction of the courts in England. 23.13 The Agreement may only be varied in writing signed by the customer and TRCS. 23.14 Nothing in this Agreement shall not, nor is it intended to, confer any rights on a third party. 23.15 The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement. Page 16 of 28 APPENDIX 1- PRICING SCHEDULE 1.1 Pricing of the eco|Driver® ™ Managed Service: [INSERT A COPY FROM SPECIFIC RELEVANT PROPOSAL] 1.2 Where the service is cancelled (see section 11) a cancellation fee may be incurred by the customer. The cancellation fee, if applied will be calculated as follows: Number of months of Committed Term remaining x (Annual Managed Service Fee/12) x 50% Page 17 of 28 APPENDIX 2 - HOSTING SERVICES DESCRIPTION INTRODUCTION This Hosting Service is a hosted eco|Driver® system that provides the customer’s or third party devices with access to the eco|Driver® Managed Service and its users with access to the eco|Driver® Managed Service via www.ecodriver.net Details of the services provided by each eco|Driver® Managed Service Application are set out in the relevant Current Product Data Sheet, as published by TRCS from time to time. To access the Service the customer must provide its Users and Devices with access to the public Internet. There are two types of communication end point supported by the Service:  Email Gateway o The customer’s Users receiving eco|Driver® Managed Service Alert messages/reports  Public Internet o The customer’s Users accessing the eco|Driver® Managed Service via www.ecodriver.net o The customer’s Devices accessing the eco|Driver® Managed Service To use the Service the customer must correctly configure eco|Driver® Managed Service user accounts such that the customer’s users have access to the data the customer wants them to. TRCS expects to improve the Service on an ongoing basis and the customer has the right to access new versions of the Service the customer has procured except where an improvement consists of new, optional functionality. Page 18 of 28 eco|Driver® Managed Service Availability The availability guarantee for the Service is quantified in the table below: Service Availability Guarantee eco|Driver® Managed Service availability* 99.45% *This guarantee is subject to the service level guarantees from a third party host. TRCS will pay the customer a service rebate under clause 16.5 in the event that the service is interrupted because of a third party host. Where the unavailability is less than one day the rebate will be calculated pro rata from the day rate. eco|Driver® Managed Service objectives The table below specifies the service objectives for the various elements that comprise the Service: Facility availability 99.60% Internet network availability 99.80% Scheduled/planned outage notice 14 days Maximum scheduled/planned outage 12 hours Maximum loss of Customer Data 7 days Note: Scheduled/planned downtime shall not be considered as ‘service downtime’ Page 19 of 28 APPENDIX 3 - SUPPORT SERVICES DESCRIPTION INTRODUCTION This Agreement includes access to the Support Services defined in this appendix providing the customer meets their Obligations described in this Agreement. The Support Services provided by TRCS comprises: - Standard Services - Additional Services Standard Services are provided under the terms of this Agreement. Additional Services will incur additional charges. TRCS determines whether Requests are to be treated as Standard Services or as Additional Service requests. STANDARD SERVICES - eco|Driver® Application Faults - Queries regarding eco|Driver® Applications and Devices - Change Requests eco|Driver® Application Faults In the event eco|Driver® Application services are unavailable, the customer can contact TRCS, using the provided phone number, after making every attempt to ascertain that the Request is caused by a failure within the eco|Driver® managed service. Call out charges may apply if the failure was found to have been caused by the network of the customer or a third party. Queries – Applications TRCS will provide end user support and training for eco|Driver® Applications, answering end users incidental queries or carrying out standard administrative functions such as password reset and adding user accounts. Queries – Devices TRCS will use eco|Driver® Applications to diagnose Faults. Where TRCS detects a potential fault with a device TRCS will notify the customer, by email, at the earliest opportunity. Change Requests Change Requests, for enhancements to eco|Driver® Applications, can be submitted to TRCS. TRCS decides whether a particular Change Request will be implemented and included in a subsequent Software Release. Depending on the nature of the request it may be treated as Additional Services. SERVICE FULFILMENT PROCESS To allow TRCS to meet its support obligations, TRCS will follow the procedure outlined in this section. Raising Requests Page 20 of 28 Requests are to be submitted via the TRCS support email. In the event that the eco|Driver® Applications are unavailable, the customer may contact TRCS using the number provided. E-mail: support@ecodriver.co.uk Tel: +44 1932 242444 Registration of Requests On receipt, TRCS will register the Request in its case management system and allocate a unique case number to be used in subsequent communications between the customer and TRCS. During registration, TRCS will determine whether sufficient information has been provided, the priority and type of Request (Fault, Query, Additional Service etc.). Minimum information required includes: - Type of Request (Fault, Query etc.) - Customer contact details - Description of the issue and diagnostic actions to date - eco|Driver® element Diagnosis TRCS will diagnose the Request. The resulting actions include: - An email to a submitted Query - Review and resolution of Fault by TRCS - Rejection of the Request (see below) - Submission of a Change Request for evaluation - A proposal for Additional Services Solution To meet the defined Service Levels, cooperation from the customer is vital. Cooperation could include: - Attending a requested conference call to discuss the Request (Skype or Go To Meeting) - Replicating or providing TRCS with information to be able to replicate a Fault - Providing access to the customer’s operational staff TRCS staff will keep the customer informed, on request, on the progress of open cases, proposed Solutions and actions required of the customer to complete Solution deployment. Request Closure Faults will be closed after the appropriate Solution has been implemented. In the event that the customer chooses not to deploy the proposed Solution, TRCS has the right to close the issue and has no further obligation to address this or similar Requests. Request closure includes: - Queries, after a response has been provided - Faults, after providing a work around, patch or upgrade - Change Request, after implementing or rejecting the change - Other, after providing a proposal for Additional Services Page 21 of 28 Request Rejection TRCS may reject Requests for a number of reasons, including but not limited to: - Improper use of eco|Driver® Applications - Inability to reproduce the Fault - Unable to implement a Change Request - SERVICE LEVELS TRCS Availability TRCS is available to address Critical, High, Medium and Low priority Requests during Office Hours. When necessary, support outside of Office Hours will be agreed with the customer and may be treated as Additional Services. All communications must be in English. Request Priority The priority of a raised Request will be determined by the Request or in cooperation with the customer. If agreement cannot be reached, then the escalation path detailed in the Escalation Procedure herein can be followed. A request can be assigned one of four priorities: - Critical: means eco|Driver® Applications are unavailable - High: means those defects in the eco|Driver® Applications that cause the system to fail or seriously impact the customer’s ability to carry on with business operations. - Medium: means those defects that allow the eco|Driver® Applications to be used albeit in a limited way and that must be corrected within a reasonable time. - Low: means those defects that are cosmetic or minor irritations by nature and will not prevent the operation of eco|Driver® Applications. Request Priority eco|Driver® Application Faults High, Medium or Low eco|Driver® Application unavailable Critical Queries regarding the use of eco|Driver® Applications Low Change Requests Low High and Medium priority Requests will be downgraded to Low priority once a suitable work around has been found. Response Times Response Time states once a Request is registered as a case, not when the e-mail is sent. TRCS will make every effort to meet the times outlined below. These may be exceeded due to their capacity, the complexity of the Request and dependence on the customer or third parties. Page 22 of 28 TRCS measures its effectiveness against the goal of resolving 80% of Requests within the timeframes. eco|Driver® Device Response Time Priority Response Time Solution Time Deployment Time Critical 1 Office Hour 2 Office Hours 1 Office Hour High 8 Office Hours 8 Office Hours 8 Office Hours Medium 16 Office Hours 40 Office Hours 40 Office Hours Low 40 Office Hours 160 Office Hours to be agreed with the customer Queries A reasonable number of Queries may be raised by the customer in any given month or year. TRCS reserves the right to charge the customer in the event an unreasonable number of Queries is raised or the raised Queries could have been easily dealt with using available Documentation. Third Party Products In the event that it is unclear as to whether the Request relates to eco|Driver® or third party products i.e. devices, TRCS is not obligated to meet the defined Service Levels until such time as the third party makes a support person available to help resolve the Request. AGREEMENT The parties acting in good faith will make every effort to reach agreement and resolve the Request within the timeframe dictated by the Request’s priority. Agreement, once reached, will be binding on both parties. ADDITIONAL SERVICES The customer can request Additional Services of TRCS. Additional Service requests can include, but are not limited to: - End user training services - Customer training and certification services - Development resulting from Change Requests - Out of Office Hours support Other Additional Services TRCS will make every effort, but are not obligated to provide Additional Services. After receiving the Additional Services request, TRCS will provide a quotation detailing the scope, solution and costs to deliver the work. Additional Services will be quoted using TRCS’s then published, current rates. Travel, accommodation, freight or other additional costs will be charged at actual cost plus 15%. On receipt of the customer’s written approval, TRCS will schedule and inform the customer of when the work is likely to be completed. Page 23 of 28 CUSTOMER’S OBLIGATIONS In order for TRCS to meet its obligations defined in this Agreement, the customer is required to meet its obligations detailed in this document. The customer’s obligations include: - To have at least two eco|Driver® trained support personnel on staff at all times - Ensure that all users of eco|Driver® Applications are adequately trained - Submit Requests by email to the designated TRCS address - Have access to Skype, email and Go To Meeting for training and conference calls and pay any third party costs necessary for such access and use - Submit all Requests with adequate information for effective diagnostics - Cooperate with TRCS in analysing and reproducing Faults - Ensure that eco|Driver® Application unavailability has not resulting from itself, any of its customers or 3rd party Network failure. Page 24 of 28 DEFINITIONS AND INTERPRETATIONS For the purposes of this Support Services Description the following terms shall have the following meanings: Deployment Time The average elapsed time, in Office Hours, between proposing a viable Solution and deploying any Patches or Software Releases required to resolve the problem Fault means where the ecoDriver® managed service does not perform as described in the Current Product Data Sheet documentation. eco|Driver® Applications All eco|Driver® Application services provided under this Agreement Office Hours means the hours between 9.00am and 5.00pm, United Kingdom, GMT, Monday to Friday, excluding public holidays Patch Means a change to an existing eco|Driver® Application Software Release Request Any request for Support Services, raised to TRCS, including Queries, Faults, Change Requests, Additional Services Response Time The elapsed time, in Office Hours, between receiving a Request and its initial assignment within EST (eco|Driver® support team) Software Release means replacement, at TRCS’s discretion, in full or part of any one of the eco|Driver® Applications which replaces existing facilities or adds new facilities Solution means a code change, advice or work around delivered to the customer in relation to a Fault. Solution Time The average elapsed time, in Office Hours, between TRCS’s initial response and providing a viable Solution Page 25 of 28 APPENDIX 4 - DICTIONARY TO GENERAL TERMS A. Definitions In the Agreement: Agreement means this managed service agreement, the eco|Driver ® Proposal for the customer and the Current Product Data Sheet, as well as the Pricing Schedule, Support Services Description and Hosting Services Description annexed hereto. Business Day means between 8:00am-17:00pm GMT Mon-Fri, excluding public holidays. Cancel means to cease, annul, postpone indefinitely. Cancellation Fee means the relevant cancellation fee or termination charge as set out in the Pricing Schedule. Charges means all those charges as set out in the Pricing Schedule which relate to the annual managed service fee. Committed Term is found in clause 2.3 but is no less than twelve months minimum from the Service Start Date. Confidential Information of a person means all information of that person (“Owner”) of a confidential nature, which another person (“Recipient”) first becomes aware, whether before or after the date of the original Application, either through disclosure by the Owner to the Recipient or otherwise through the Recipient’s involvement with the Owner. Confidential Information does not include information: (a) the Recipient creates (whether alone or jointly with any person) independently of the Owner’s Confidential Information; (b) that is public knowledge (otherwise than as a result of a breach of confidentiality by the Recipient or any person to whom it has disclosed the information); or (c) obtained without restriction as to further disclosure from a source other than the Owner through no breach of confidentiality by that source. Consequential Loss means loss of revenue, loss of profits, loss of production, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages and any penalties or fines imposed by a Regulator. Content means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service. Current Product Data Sheet means the document describing the goods and services to be provided by TRCS. Customer Data has the meaning as set out in clause 4.7. Device means an item of equipment designed and configured to access an Individual Service. For example an item of meter data capture equipment (e.g. transmitter, data concentrator / logger) or a third party data source (e.g. day+1 data sent by FTP) Downgrade means any modification to the Service or an Individual Service which reduces the capacity, use or utility of that Service or an Individual Service. Excluded Event means: (a) a breach of the Agreement by you, (b) an Intervening Event; (d) a negligent or fraudulent act or omission of you or any of your Personnel; or Page 26 of 28 (e) a failure of any of your equipment. Fault means where the ecoDriver® managed service does not perform as described in the Current Product Data Sheet documentation. Hosting Service Description means the part of the Agreement entitled "Hosting Service Description" and annexed hereto which is the TRCS standard service description describing the Hosting Service. Individual Service means each individual service making up the Service; for example, the service for a single customer site. For clarity, there may be more than one Individual Service making up the Service. Insolvency Event means: (b) any step is taken to enter into any scheme of arrangement between the customer and the customer’s creditors; (c) any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of the customer’s assets or business; (d) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a liquidator, an administrator or other like person to the customer or to the whole or any part of your assets or business; (e) the customer suspends payment of their debts generally; or (f) the customer is or becomes unable to pay their debts when they are due or the customer is or is presumed to be insolvent for the purposes of any provision of the Insolvency Act 1986. Installation Warranty refers to the support and maintenance of any hardware and/or 3rd party services that have been procured by TRCS (or by one of TRCS’s sub-contractors) for the purpose of implementing eco|Driver® at the customer’s site. This Installation Warranty will be provided for a period of 30 days from the Service Start Date. The Installation Warranty does not apply to existing equipment / services or any equipment / services provided by a 3rd party but not procured by TRCS. Intellectual Property Rights means any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs, know-how, or copyright) and includes the right to have Confidential Information kept confidential. Interruption in the supply of goods or a service (including the Service and each Individual Service) means a delay in supplying, a failure to supply or an error or defect in the supply of, those goods or that service. Intervening Event affecting a person means any event outside that person’s reasonable control, and includes but is not limited to failure or fluctuation in any electrical power supply, failure of air conditioning or humidity control, electromagnetic interference, fire, storm, flood, earthquake, other acts of God, accident, war, strikes, lock outs, delay in manufacture, labour dispute (other than a dispute solely between that person and its own staff or staff under its control), materials or labour shortage, the change or introduction of any law or regulation, delay in manufacture, production or supply by third parties of equipment or services, or an act or omission of any third party (including government, highway authorities or any telecommunications carrier, operator or administration or other competent authority), or any failure of any equipment owned or operated by any third party (including any Regulator, any Supplier or any of their Personnel). Loss means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/client basis and includes Consequential Loss, unless otherwise stated. Page 27 of 28 Personnel of a person or party means that person/party’s employees, agents, contractors or other representatives and, in the case of TRCS, includes the employees, agents, contractors. Pricing Schedule means the agreed rate plan, pricing and charges list for the Service as annexed hereto. Proposal means the eco|Driver® Proposal which contains binding terms and is signed to accept this eco|Driver® Managed Service Agreement. Regulator means any other government or statutory body or authority. Service means the ecoDriver® managed service to be provided to the customer by TRCS as set out in clause 2 and this Agreement and ancillary services which TRCS supplies to the customer in connection with that service. Service Start Date for the Service or an Individual Service means the date on which TRCS starts supplying that Service or Individual Service to the customer, or is deemed to do so. Set-up describes the process of configuring the eco|Driver® managed service application to enable it to record data and present information in accordance with the customer’s requirements. This process requires the customer to provide relevant information without which the service cannot be ‘set-up’. Supplier means any supplier of goods or services (including interconnection services) which are used directly or indirectly by TRCS to supply the service. Supplier Network means any telecommunications network, equipment, or facilities, or cabling controlled by a Supplier. Support Service Description means the part of the Agreement entitled "Support Service Description" and annexed hereto which is the TRCS standard service description describing the Support Service. Suspend means suspend, reduce, restrict or limit supply. Tax means any value-added or goods and services tax, withholding tax, charge (and associated penalty or interest), rate, duty or impost imposed by any authority but does not include any income or capital gains tax. Terms means this Agreement and corresponding documents. TRCS means the TR Control Solutions entity specified at the head of this Agreement. B. Interpretation (b) The expressions "TRCS", "the customer" or "the customer’s" will include their respective successors and permitted assigns and novatees. (c) A reference to a person includes a reference to a person, firm, corporation or other legal entity. (d) A term which is defined in any part of the Agreement has the same meaning in every other part of the Agreement. (e) The singular includes the plural and vice versa. (f) Different grammatical forms of the same word have the corresponding meaning. (g) A reference to a clause is to a clause in these Terms, unless otherwise stated. (h) Examples or words of inclusion are illustrative only and do not limit the generality of the relevant subject. Page 28 of 28