Ascendancy Edge Software as a Service Terms and Conditions Ascendancy Solutions Ltd Version 2.2 [DATE] Ascendancy Edge Software as a Service Terms and Conditions Please read these terms and conditions carefully, as they set out our and your legal rights and obligations in relation to the “Ascendancy Edge” platform and services. You will be asked to agree to these terms and conditions before becoming a customer. If you have any questions or complaints about our services, please contact us by writing to: Managing Director, Ascendancy Solutions Ltd, 1st Floor, Block C The Wharf Manchester Road Burnley BB11 1JG or by email to bob.burns@ascendancy-solutions.com 1. Definitions and interpretation 1.1 In the Agreement: “Affiliate” means an entity that Controls, is controlled by, or is under common Control with the relevant entity; “Agreement” means the agreement between the Provider and the Customer for the provision of the Platform as a service, incorporating these terms and conditions (including the Schedules) and the Statement of Services, and any amendments to the Agreement from time to time; “Business Day” means any week day, other than a bank or public holiday in England “Business Hours” means between 09:00 and 17:30 London time on a Business Day; “CCN” means a Change Control Notice issued in accordance with Clause 11, which may be in the form specified in Schedule 4; “CCN Consideration Period” means the period of 10 Business Days following the receipt of a CCN sent by the other party; “Change” means any change to the terms of the Agreement “Charges” means the amounts payable by the Customer to the Provider under or in relation to the Agreement (as set out in Schedule 2); “Confidentiality Agreement” means the Confidentiality Agreement between the Customer and the Provider. “Confidential Information” means the Customer Confidential Information and the Provider Confidential Information; “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” will be construed accordingly); “Customer” means the customer specified in the Statement of Services; “Customer Confidential Information” means (a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Customer to the Provider that is marked as “confidential”, described as “confidential” or should have been understood by the Provider at the time of disclosure to be confidential; (b) the terms and conditions of the Agreement; (c) the Customer Materials. "Customer Indemnity Event" has the meaning given to it in Clause 13.1; "Customer Materials" all works and materials: (a) uploaded to, stored on, processed using or transmitted via the Platform by or on behalf of the Customer or by any person or application or automated system using the Customer's account; and (b) otherwise provided by the Customer to the Provider in connection with the Agreement; "Customer Representatives" means the person or persons identified as such in the Statement of Services; "Customisations" means customisations to the Platform that the Provider and Customer agree the Provider will produce on behalf of the Customer; “Defect” means a defect, error or bug having a materially adverse effect on the appearance, operation or functionality of the Platform, but excluding any defect, error or bug caused by or arising as a result of: (a) an act or omission of the Customer, or an act or omission of one of the Customer's employees, officers, agents, suppliers or sub-contractors; or (b) an incompatibility between the Platform and any other system, application, program or software not specified as compatible in the Statement of Services "Documentation" means the documentation produced by the Provider and supplied / made available on the Platform to the Customer specifying how the Platform should be used; “Effective Date” means the date that the Agreement comes into force as specified in Clause 2 / the date of execution of the Agreement “Escrow Service Agreement” means an escrow service agreement in respect of the Platform (including Upgrades) in a form reasonably acceptable to the Customer and a third party escrow service provider approved by the Customer. “Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of or problems with the internet or a part of the internet, hacker attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars); “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models and rights in designs); “Minimum Term” means the period specified as such in the Statement of Services; "Permitted Purpose" means operation and management of a Water Supply Business in Scotland and/or England, in accordance with the Platform design and build as defined in the Platform Documentation; “Personal Data” has the meaning given to it in the Data Protection Act 1998; “Platform” means the software platform known as “Ascendancy Edge” that is owned and operated by the Provider, and that will be made available to the Customer as a service via the internet under the Agreement; “Provider” means “Ascendancy Solutions Ltd”, a company incorporated in England (registration number (05640500) having its registered office at Ascendancy Solutions Ltd, 1st Floor, Block C, The Wharf, Manchester Road, Burnley, BB11 1JG “Provider Confidential Information” means: (a) any information disclosed (whether disclosed in writing, orally or otherwise) by the Provider to the Customer that is marked as “confidential”, described as “confidential” or should have been understood by the Customer at the time of disclosure to be confidential; (b) the terms and conditions of the Agreement. "Provider Indemnity Event" has the meaning given to it in Clause 13.3; "Provider Representatives" means the person or persons identified as such in the Statement of Services; “Representatives” means the Customer Representatives and the Provider Representatives; “Schedule” means a schedule attached to the Agreement; “Services” means all the services provided or to be provided by the Provider to the Customer under the Agreement, including the Support Services; "Statement of Services" means the document made available by the Provider to the Customer during the order process / agreed between the parties, that specifies the identity of the Customer, and other matters relating to the Agreement "Support Services" means support and maintenance services provided or to be provided by the Provider to the Customer in accordance with Schedule 1; “Term” means the term of the Agreement; and “Upgrades” means new versions of, and updates to, the Platform, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform. 1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to: (a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and (b) any subordinate legislation made under that statute or statutory provision. 1.3 The Clause headings do not affect the interpretation of the Agreement. 1.4 The ejusdem generis rule is not intended to be used in the interpretation of the Agreement 2. Agreement and Term The Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter unless terminated in accordance with Clause 17. 3. The Platform 3.1 The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practicable following the Effective Date. 3.2 Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser in accordance with the Documentation during the Term. 3.3 The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations: (a) the Platform may only be used by the employees, agents and sub-contractors of the Customer and: (i) where the Customer is a company, the Customer's officers; (ii) where the Customer is a partnership, the Customer's partners; and (iii) where the Customer is a limited liability partnership, the Customer's members; (b) the Customer must comply at all times with the terms of the acceptable use policy supplied with the Platform, and must ensure that all users of the Platform agree to and comply with the terms of that acceptable use policy; 3.4 Except to the extent mandated by applicable law or expressly permitted in the Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions: (a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform; (b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; (c) the Customer must not alter or adapt or edit the Platform 3.5 The Customer shall not be entitled to access the object code or source code of the Platform except as provided in the Escrow Service Agreement (which the parties undertake to enter into within 60 days after the date of this Agreement). 3.6 All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider. 3.7 The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer's account. 3.8 The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform. 3.9 The Customer must not use the Platform: (a) in any way that is unlawful, illegal, fraudulent or harmful; or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity. 5. Support Services and Upgrades 5.1 During the Term the Provider will provide the Software Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule 1. 5.2 The Provider may sub-contract the provision of any of the Software Support Services without obtaining the consent of the Customer. 5.3 It is a condition of this agreement that the Customer takes out a Service Agreement with Ascendancy Solutions (or another comparable provider) in order to provide Service Desk support. For the avoidance of doubt, it should be noted that Service Desk support for issues other than Edge software related issues are not covered under this agreement. 6. Customisations 6.1 From time to time the Provider and the Customer may agree that the Provider will customise the Platform in accordance with a specification agreed in writing between the parties / using the Change control procedure set out in Clause 11. 6.2 From the date when a Customisation is first made available to the Customer, the Customisation shall form part of the Platform under the Agreement, and accordingly from that date the Customer's rights to use the Customisation shall be governed by Clause 3. 6.3 The Customer acknowledges that the Provider may make any Customisation available to its other Customers at any time 6.4 All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider. 6.5 The Customer will provide the Provider with: (a) such access to the Customer's computer systems and such other co-operation as is required by the Provider (acting reasonably) to enable the performance by the Provider of its obligations under this Clause 6; (b) all information and documents required by the Provider (acting reasonably) in connection with the performance by the Provider of its obligations under this Clause 6; and (c) any legal, accountancy or taxation advice reasonably required to ensure the compliance of the Customisations with applicable laws, regulations and standards. 6.6 The Customer will be responsible for procuring any third party co-operation reasonably required by the Provider to enable the Provider to fulfil its obligations under this Clause 6. 7. Management 7.1 The Customer will ensure that all instructions in relation to the Agreement will be given by a Customer Representative to a Provider Representative, and the Provider: (a) may treat all such instructions as the fully authorised instructions of the Customer; and (b) will not comply with any other instructions in relation to the Agreement without first obtaining the consent of a Customer Representative. 7.2 The parties will hold contract management meetings by telephone and via the internet: (a) once per calendar month during the Term; and (b) at the reasonable request of either party. 7.3 A party requesting a contract management meeting to be held will give to the other party at least 3 Business Days' notice of the meeting. 7.4 Wherever necessary to enable the efficient conduct of business, the Customer will be represented at a contract management meeting by at least one Customer Representative and the Provider will be represented at a contract management meeting by at least one Provider Representative. 8. Customer Materials 8.1 The Customer grants to the Provider a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under the Agreement, and exercising its rights under the Agreement. 8.2 Subject to Clause 8.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer. 8.3 The Customer warrants to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of the Agreement, will not: (a) breach any laws, statutes, regulations or legally-binding codes; (b) infringe any person's Intellectual Property Rights or other legal rights; or (c) give rise to any cause of action against the Provider or the Customer or any third party, in each case in any jurisdiction and under any applicable law / in England and Wales and under English law. 8.4 The Provider shall ensure that the Customer Materials stored and processed by the Platform are stored separately from, and are not co-mingled with, the materials of other customers of the Provider. 9. Trial period 9.1 The first 10 days of the Term shall be a trial period, during which all of the provisions of this Agreement shall apply, save as follows: (a) the Customer shall have no obligation to pay the Charges in respect of the trial period; (b) either party may terminate the Agreement immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay any Charges in respect of Platform access or Support Services will arise). 10. Charges 10.1 The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule 2. 10.2 The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with Clause 10.1. 10.3 All Charges stated in or in relation to the Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts. 10.4 Charges must be paid by bank transfer (using such payment details as are notified by the Provider to the Customer from time to time). 10.5 If the Customer does not pay any amount properly due to the Provider under or in connection with the Agreement, the Provider may charge the Customer interest on the overdue amount at the rate of 5% per year above the base rate of Barclays Bank Plc from time to time (which interest will accrue daily and be compounded quarterly) 10.6 The Provider may vary the Charges payable under Paragraphs 1 and 2 of Schedule 2 on and from any anniversary of the Effective Date by giving to the Customer not less than 90 days written notice of the variation, providing that no such variation will result in the relevant element of the Charges increasing during the Term by more than the percentage increase during the same period in the Retail Prices Index (all items) published by the UK Office for National Statistics. 10.7 The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under the Agreement are overdue by more than 30 days 11. Change control 11.1 The provisions of this Clause 11 apply to all Changes requested by a party. 11.2 Either party may request a Change at any time. 11.3 When requesting a Change, the requesting party will notify the other party and provide a CCN (which will be in the form specified in Schedule 4). The CCN will set out (as a minimum): (a) details of the impact on the Services; (b) details of any additional resources expected to be required as a result of the Change; and (c) details of any variation to the Charges consequent upon the Change. 11.4 The other party will consider any proposed Change within the CCN Consideration Period. 11.5 Either party may: (a) accept or reject a CCN issued by the other party; (b) request further information concerning any aspect of a CCN issued by the other party; and/or (c) request amendments to a CCN issued by the other party. 11.6 Following agreement of a CCN, each party will confirm its agreement to the CCN by: (a) signing a copy of the CCN and sending the signed CCN to the other party; or (b) otherwise sending its written acceptance of the CCN to the other party. 11.7 Until a CCN recording a proposed Change has been signed or agreed in writing by each party, the proposed Change will not take effect. 12. Warranties 12.1 The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under the Agreement. 12.2 The Provider warrants and represents to the Customer: (a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; (b) that it will perform its obligations under the Agreement with reasonable care and skill; (c) that the Platform will perform substantially in accordance with the Documentation (subject to any Upgrades and Customisations); (d) that the Platform will be hosted in accordance with the requirements set out in the Statement of Services, and will be available to the Customer in accordance with the uptime commitments given in Schedule 1; (e) the Platform (excluding for the avoidance of doubt the Customer Materials) will not: (i) breach any laws, statutes, regulations or legally-binding codes; (ii) infringe any person's Intellectual Property Rights or other legal rights; or (iii) give rise to any cause of action against the Provider or the Customer or any third party, in each case in any jurisdiction and under any applicable law / in England and Wales and under English law; and (f) the Platform is and will remain free from viruses and other malicious software programs. 12.3 The Customer acknowledges that: (a) complex software is never wholly free from defects, errors and bugs, and the Provider gives no warranty or representation that the Platform will be wholly free from such defects, errors and bugs; (b) the Provider does not warrant or represent that the Platform will be compatible with any application, program or software not specifically identified as compatible in the Statement of Services ; and 12.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the terms of the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement. 13. Indemnities 13.1 Subject to the Provider's compliance with Clause 13.2, the Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 8.3 (a "Customer Indemnity Event"). 13.2 The Provider will: (a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer; (b) provide to the Customer reasonable assistance in relation to the Customer Indemnity Event; (c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Customer Indemnity Event; and (d) not admit liability in connection with the Customer Indemnity Event or settle the Customer Indemnity Event without the prior written consent of the Customer. 13.3 Subject to the Customer's compliance with Clause 13.4, the Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 12.2(e) (a "Provider Indemnity Event"). 13.4 The Customer will: (a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider; (b) provide to the Provider reasonable assistance in relation to the Provider Indemnity Event; (c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements relating to the Provider Indemnity Event; and (d) not admit liability in connection with the Provider Indemnity Event or settle the Provider Indemnity Event without the prior written consent of the Provider. 14. Limitations and exclusions of liability 14.1 Nothing in the Agreement will (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; (c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law. 14.2 The limitations and exclusions of liability set out in this Clause 14 and elsewhere in the Agreement: (a) are subject to Clause 14.1; (b) govern all liabilities arising under the Agreement or in relation to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty; and (c) will not limit or exclude the liability of the parties under the express indemnities set out the Agreement. 14.3 Neither the Customer nor the Provider will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings. 14.4 Neither the Customer nor the Provider will be liable for any loss of business, contracts or commercial opportunities. 14.5 The Provider will not be liable for any loss of or damage to goodwill or reputation. 14.6 The Provider will not be liable in respect of any loss or corruption of any data, database or software. 14.7 The Provider will not be liable in respect of any special, indirect or consequential loss or damage. 14.8 The Provider will not be liable for any losses arising out of a Force Majeure Event. 14.9 The Provider's liability in relation to any event or series of related events will not exceed the greater of: (a) £1000; and (b) the total amount paid and payable by the Customer to the Provider under the Agreement during the 1 month period immediately preceding the event or events giving rise to the claim. 14.10 The Provider's aggregate liability under the Agreement will not exceed the greater of: (a) £10,000; and (b) the total amount paid and payable by the Customer to the Provider under the Agreement. 15. Data protection 15.1 The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with the Agreement. 15.2 The Provider warrants that: (a) it will act only on instructions from the Customer in relation to the processing of any Personal Data performed by the Provider on behalf of the Customer; and (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by the Provider on behalf of the Customer. 16. Confidentiality and publicity 16.1 The Provider will: (a) keep confidential and not disclose the Customer Confidential Information to any person save as expressly permitted by this Clause 16; (b) protect the Customer Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care; and (c) without prejudice to the generality of Clause 16.1(b), deploy and maintain the security systems and technologies detailed in the Statement of Services in relation to the Customer Confidential Information held on the Platform. 16.2 The Customer will: (a) keep confidential and not disclose the Provider Confidential Information to any person save as expressly permitted by this Clause 16; (b) protect the Provider Confidential Information against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. 16.3 Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed. 16.4 The obligations set out in this Clause 16 shall not apply to: (a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence); (b) Customer Confidential Information that is lawfully in the possession of the Provider prior to disclosure by the Customer, and Provider Confidential Information that is in possession of the Customer prior to disclosure by the Provider; (c) Customer Confidential Information that is received by the Provider, and Provider Confidential Information that is received by the Customer, from an independent third party who has a right to disclose the relevant Confidential Information; or (d) Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must where permitted by law give to the other party prompt written notice of the disclosure requirement. 16.5 Neither party will make any public disclosure relating to the Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party. 16.6 If there is any inconsistency between any of the provisions of this Clause 16 and the provisions of the Confidentiality Agreement, the provisions of the Confidentiality Agreement shall prevail. 17. Termination 17.1 Either party may terminate the Agreement immediately by giving written notice to the other party if the other party: (a) commits any material breach of any term of the Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other party fails to remedy the breach within 30 days of receipt of a written notice requiring it to do so; or (b) persistently breaches the terms of the Agreement (irrespective of whether such breaches collectively constitute a material breach). 17.2 Either party may terminate the Agreement immediately by giving written notice to the other party if: (a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; (b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; (c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Agreement); 17.3 Either party may terminate the Agreement by giving at least 120 days' written notice of termination to the other party / the Provider, expiring at any time after the end of the Minimum Term. 17.4 Either party may terminate the Agreement by giving written notice of termination to the other party in the event that the parties cannot reasonably agree on any Change request made in accordance with Clause 11. 17.5 The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement that is overdue by more than 60 days having first given 14 days written warning of the intention to terminate under this clause.. 18. Effects of termination 18.1 Upon termination of the Agreement, all the provisions of the Agreement will cease to have effect, save that the following provisions of the Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 4.4, 10.5, 13, 14, 16.1 to 16.4, 18 and 21. 18.2 Termination of the Agreement will not affect either party's accrued liabilities and rights as at the date of termination. 18.3 Subject to Clause 18.5, within 30 days following the termination of the Agreement, the Provider will: (a) irrevocably delete from the Platform all Customer Confidential Information; and (b) irrevocably delete from its other computer systems all Customer Confidential Information, and return to the Customer or dispose of as the Customer may instruct all documents and materials containing Customer Confidential Information. 18.4 Subject to Clause 18.5, within 30 days following the termination of the Agreement, the Customer will: (a) return to the Provider or dispose of as the Provider may instruct all documents and materials containing Provider Confidential Information; and (b) irrevocably delete from its computer systems all Provider Confidential Information. 18.5 A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination of the Agreement if: (a) that party is obliged to retain such document by any law or regulation or other rule enforceable against that party; or (b) the document in question is a letter, fax, email, order confirmation, invoice, receipt or similar document addressed to the party retaining the document 19. Notices 19.1 Any notice given under the Agreement must be in writing (whether or not described as “written notice” in the Agreement) and must be delivered personally, sent by recorded signed-for post, or email, for the attention of the relevant person, and to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause). The Provider: Ascendancy Solutions Ltd, 1st Floor, Block C, The Wharf, Manchester Road Burnley, BB11 1JG bob.burns@ascendancy-solutions.com The Customer: The addressee, address and email set out in the Statement of Services. 19.2 A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below): (a) where the notice is delivered personally, at the time of delivery; (b) where the notice is sent by recorded signed-for post, 48 hours after posting; and (c) where the notice is sent by email, at the time of the transmission (providing the sending party retains written evidence of the transmission). 20. Force Majeure Event 20.1 Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under the Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event. 20.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under the Agreement, will: (a) forthwith notify the other; and (b) will inform the other of the period for which it is estimated that such failure or delay will continue. 20.3 The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event. 20.4 If the period of delay or non-performance continues for 90 days or more, the party not affected may terminate this agreement by giving 7 days' written notice to the affected party. 21. General 21.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. 21.2 If a Clause of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of the Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted). 21.3 Nothing in the Agreement will constitute a partnership, agency relationship or contract of employment between the parties. 21.4 The Agreement may not be varied except in accordance with Clause 11 or by a written document signed by or on behalf of each of the parties. 21.5 Save as expressly provided in this Clause or elsewhere in the Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in the Agreement or any contractual rights or obligations under the Agreement. 21.6 Neither party will, without the other party's prior written consent, either during the term of the Agreement or within 6 months after the date of effective termination of the Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of the Agreement. 21.7 Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under the Agreement. 21.8 The Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party. 21.9 Subject to Clause 14.1 and the Confidentiality Agreement: (a) the Agreement and the acceptable use policy and end user licence agreement referred to in herein constitutes the entire agreement between the parties in relation to the subject matter of the Agreement, and supersedes all previous agreements, arrangements and understandings between the parties in respect of that subject matter; and (b) neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement. 21.10 The Agreement will be governed by and construed in accordance with the laws of England and Wales and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement. Schedule 1 Service Level Agreement 1. Introduction 1.1 In this Schedule: "New Functionality" means new functionality that is introduced to the Platform by an Upgrade; and "Protected Functionality" means core functionality of the Ascendancy Edge Platform at the time of the Agreement. 1.2 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated. 2. Helpdesk 2.1 As outlined in Paragraph 5.3, it is a condition of this agreement that the Customer take out a Service Agreement with Ascendancy Solutions (or another comparable provider) in order to provide Level 1 / Level 2 Service Desk support. The Level 1 / Level 2 Service Desk support provider will make available, during Business Hours, access to the in-line ticketing system, for the purposes of: (a) assisting the Customer with the configuration of the Platform and the integration of the Platform with the Customer's other systems (b) assisting the Customer with the proper use of the Platform; and/or (c) determining the causes of errors and fixing errors in the Platform and/or associated data. 2.2 Subject to Paragraph 2.4, the Customer must make all requests for Support Services using the Edge Helpdesk feature. All Support Service requests must include at least the following information: • Support Caller Name • Support Caller Phone Number • Support Caller email address • Support Issue Description • Screen Print of any error messages • URL of web page causing the error 2.3 A Support Request “Ticket Number” will be assigned to all support requests to allow response tracking and feedback. 2.4 The Provider will use reasonable endeavours to ensure that a member of its support staff can be reached by mobile phone outside Business Hour in the case of an emergency. 3. Response and resolution times 3.1 The Provider will: (a) use reasonable endeavours to respond to requests for software support made through the Edge Help feature or via email to the Service Desk support provider; and (b) use reasonable endeavours to resolve issues raised by the Customer, in accordance with the following response time matrix. Severity Examples Response time Resolution time Critical Platform is not available for users 1 business hour 12 business hours Serious System is available but core functionality is not available 2 business hours 24 business hours Moderate System core functionality is available but there is a localised issue or error 4 business hours 48 business hours Minor Minor or cosmetic issue 4 business hours 72 business hours 3.2 The Provider will determine, acting reasonably, in to which severity category an issue raised through the software support service falls. 3.3 All software support services will be provided remotely unless expressly agreed otherwise by the Provider. 4. Limits on Support Services 4.1 The Provider shall have no obligation under the Agreement to provide software support service in respect of any fault or error caused by: (a) the improper use of the Platform; or (b) the use of the Platform otherwise than in accordance with the Documentation. 5. Upgrades 5.1 The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may, subject to Paragraph 5.2, result in changes to the appearance and/or functionality of the Platform. 5.2 No Upgrade shall disable, delete or significantly impair the Protected Functionality. 5.3 The Provider will give to the Customer at least 10 days prior written notice of the application of any significant Upgrade to the Platform. Such notice shall include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade. 5.4 The Customer shall not be subject to any additional Charges arising out of the application of the Upgrade, save where: (a) the Upgrade introduces New Functionality to the Platform; (b) that New Functionality does not serve the same purpose as legacy functionality that ceases or has ceased to be available as a result of any Upgrade; (c) access to or use of the New Functionality is chargeable to the customers of the Provider using the Platform generally; and (d) any decision by the Customer not to pay the Charges for the New Functionality will not prejudice the Customer's access to and use of the rest of the Platform. 6. Uptime commitment 6.1 The Provider shall use reasonable endeavours to ensure that the Platform is available 99.5% of the time during each calendar month, subject to Paragraph 8. 6.2 The Provider shall arrange for the monitoring of the availability of the Platform, and shall send an availability report to the Customer promptly following the end of each calendar month / the Customer's request. 7. Back-up and restoration 7.1 The Provider will: (a) make back-ups of the Customer Materials stored on the Platform on a daily basis, and will retain such back-ups for at least 14 days; 7.2 In the event of the loss of, or corruption of, Customer Materials stored on the Platform being notified by the Customer to the Provider under Paragraph 2, the Provider shall if so directed by the Customer use reasonable endeavours to restore the Customer Materials from the most recent available back-up copy. 8. Scheduled maintenance 8.1 The Provider may suspend access to the Platform in order to carry out scheduled maintenance, such maintenance to be carried out outside Business Hours and such suspension to be for not more than 5 hours in each calendar month. 8.2 The Provider must give to the Customer at least 5 days' written notice of schedule maintenance, including full details of the expected Platform downtime. 8.3 Platform downtime during scheduled maintenance carried out by the Provider in accordance with this Paragraph 8 shall not be counted as downtime for the purposes of Paragraph 6. 9. Access to Customer Materials from Central Market Authority (CMA) (Scotland) 9.1 The Customer will nominate the Provider as a designated Supplier with the Central Market Authority (CMA) for the purposes of providing ongoing access to: • CMA High Volume Interface (HVI) for incoming and outgoing Transactions • CMA Low Volume Interface (LVI) for incoming and outgoing Transactions • CMA FTP login credentials for Market Data Set (MDS) and Settlement Data 10. Access to Customer Materials from Market Operator Services Ltd (MOSL) (England) 10.1 The Customer will nominate the Provider as a designated Supplier with the Market Operator Services Ltd (MOSL) for the purposes of providing ongoing access to: • MOSL High Volume Interface (HVI) for incoming and outgoing Transactions • MOSL Low Volume Interface (LVI) for incoming and outgoing Transactions • MOSL FTP login credentials for Market Data Set (MDS) and Settlement Data Schedule 2 Charges 1. Introduction 1.1 References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated. 1.2 The Charges under the Agreement will consist of the following elements: (a) Access, Use of Platform and Software Support Charges (b) Other Charges 2. Access, Use of Platform and Software Support Charges 2.1 The Monthly Charge (excluding VAT) in respect of Access, Software Support and Use of the Platform for Market Search and Pricing only is defined in the following table: No of Core SPIDs Scotland only England only Scotland & England 0 to 999 £1250 £1750 £2500 100 to 4999 £1750 £2250 £3500 More than 5000 £2250 £3250 £5000 2.2 The Monthly Charge (excluding VAT) in respect of Access, Software Support, Market Search and Pricing and Market Integration (to CMA / MOSL) is based on a percentage of the Wholesale Charges. These charges are defined in the following table: Annual Wholesale Charge (£) Without Billing With Billing 0 - £10m 0.4% with min of £2000 per month 0.7% with min of £2000 per month £10m - £30m 0.1% 0.5% £30m + 0.1% 0.2% 2.3 The Market Wholesale Charge used in calculating the Access Charge will be the R1 value for the month preceding the calendar month in which the Access Charges are incurred. For example, the R1 value for March will be used to calculate the Access Charge for April. 2.4 Access Charges will be calculated using sequential Access Charge Rates. For example, if the Wholesale Charge was £15m, then the Access Charge for the Integrated Edge Platform with Billing would be (£10m x 0.7%) + (£5m x 0.5%) 2.5 Additional subscription charge of £500 per month applies to the Scottish “CMA HVI Transaction Module”. This module allows LP Customers to send and receive transactions to/from the CMA using the High Volume Interface, fully integrated within the Edge platform. 2.6 Additional subscription charge of £750 per month applies to the English “MOSL HVI Transaction Module”. This module allows LP Customers to send and receive transactions to/from the MOSL using the High Volume Interface, fully integrated within the Edge platform. 2.7 Additional subscription charge of £500 per month applies to the “Customer Portal”. This on line module allows LP Customers to have access to the Edge platform for entering meter readings, viewing bills etc. 2.8 Additional subscription charge of £500 per month applies to the “BACS Module”. This on-line module provides an automated daily interface to the BACS provider for the collection of Direct Debit payments. 2.9 Additional subscription charge of £250 per month applies to the “QuoteSwitch Module”. This on-line module provides any potential customer with the ability to obtain an on-line quotation from Edge and to initiate the Switching process. 2.10 The Access Charge shall be invoiced by the Provider at any time following the end of the calendar month in respect of which the Access Charges are incurred (such amount to be pro-rated by the Provider in the event that the Agreement came into force or was terminated during a calendar month) 3. Other Charges 3.1 Project related work resulting from agreed chargeable Platform Changes, Customer Data Cleansing, Customer Data Migration, Bespoke Interface Design and Development etc. will be invoiced according to an agreed Project delivery and invoicing timetable; 3.2 Project Charges will be quoted on a fixed price basis or on a time and materials basis as agreed in advance and in writing by both parties. Schedule 3 Form of CCN Title of Change: CCN number: Change proposed by: Date of issue of CCN: Date of CCN expiry: Summary details of proposed Change: 1. Detailed description of Change. 2. Details of the impact on the timetable for the provision of the Services. 3. Details of any additional resources expected to be required as a result of the Change. 4. Details of any variation to the Charges consequent upon the Change. 5. Any other consequences of, or matters relating to, the Change. Statement of Services Customer The Customer is [CUSTOMER], a company incorporated in [COUNTRY] (registration number [COMPANY NUMBER] having its registered office at [CUSTOMER ADDRESS]. Customer notices [CUSTOMER REPRESENTATIVE], [CUSTOMER REPRESENTATIVE POSITION], [CUSTOMER], [CUSTOMER ADDRESS] Email: [CUSTOMER REPRESENTATIVE EMAIL] Minimum Term The Minimum Term shall be the period of 48 months following the end of the trial period referred to in Clause 9 of the Terms and Conditions. Platform specification The Ascendancy Edge Platform is a modular web-based “Retail Water Management Solution”, providing the following functionality: • CMA Market Data Set (MDS) Module for daily data uploads • MOSL Market Data Set (MDS) Module for daily data uploads • Customer Pricing Module, with output to .pdf and .xlsx • Tariff Management Module (Retail and Wholesale tariffs) • Customer Account Management Module • Data Quality Module (daily reconciliation against MDS data) • Billing Engine Module (with bi-temporal versioning) with output to .pdf (or other file format) (subject to Option 2 being selected in section 2.1 of Schedule 2 – Charges) • Metering Module (with integrated meter read validation) • Reporting Module (using SSRS) with Management KPI Dashboard • Customer Portal Module – on-line access to Customer Account details and Customer Billing Records only (note that the Customer Portal Module is subject to an additional subscription charge of £500 per month) • Quotation Module on-line customer pricing / switching module (note that the Quotation Module is subject to an additional subscription charge of £250 per month) • Audit Module (provides full audit trail of Platform updates) • CMA HVI Transactions Module (providing coverage of incoming and outgoing CMA HVI Transactions) (note that the HVI Transactions Module is subject to an additional subscription charge of £500 per month) • MOSL HVI Transactions Module (providing coverage of incoming and outgoing MOSL HVI Transactions) (note that the HVI Transactions Module is subject to an additional subscription charge of £750 per month) • BACS / Direct Debit Module (for payment processing) (note that the BACS Module is subject to an additional subscription charge of £500 per month) The Platform is designed to interface with the following systems, applications, programs and software: • CMA Market Data Set (MDS) for daily data uploads (using the Customers MDS data) • CMA Settlement Data Set for Settlement Reporting (using the Customers Settlements data) • CMA High Volume Interface (HVI) for Incoming and Outgoing Transactions • MOSL Market Data Set (MDS) for daily data uploads (using the Customers MDS data) • MOSL Settlement Data Set for Settlement Reporting (using the Customers Settlements data) • MOSL High Volume Interface (HVI) for Incoming and Outgoing Transactions • Customer Relationship Management (CRM) system (Customer defined interface). Note that the cost of specific integration projects is NOT covered by the Access and Support Charges defined in Section 2 of Schedule 2. These will be estimated upon request on a T&M basis. • Financial Management/Ledger systems such as SAP or Sage (Customer defined interface). Note that the cost of specific integration projects is NOT covered by the Access and Support Charges defined in Section 2 of Schedule 2. These will be estimated upon request on a T&M basis. • BACS / Direct Debit Management System for incoming Customer Payments (Customer defined interface) • Meter Management System for incoming meter readings (Customer defined interface) The Platform is hosted on the Microsoft Azure Cloud. • Azure delivers a 99.95% compute SLA and enables you to run the Ascendancy Edge Platform without focusing on infrastructure. • Azure provides automatic OS and service patching, built in network load balancing and resiliency to hardware failure. • Azure supports the Ascendancy deployment model (monthly planned “out-of-hours” maintenance and upgrade) that enables application upgrade without Customer downtime. • Azure Storage provides secure and reliable storage for Customer needs. Built with durability in mind, geo-replication provides redundancy of data across regions to ensure access to data in the event of a local disaster. The Platform will be protected using the following security systems and technologies: • Azure Active Directory delivers an enterprise ready cloud identity service enabling a single sign-on experience across cloud and on-premises applications. • Azure allows multi-factor authentication for added security and compliance. • Website protection by SSL Certificate. It means that your business is protected by the same leading-edge security demanded by the world’s largest banks and most highly trafficked websites. Licensing The Ascendancy Edge Platform allows an unlimited number of Customer Users within the licence agreement. There is no limit to the number of concurrent users. The Customer System Administrator User may add or remove named Customer Users.   Representatives Customer Representatives: [CUSTOMER REPRESENTATIVE], [CUSTOMER REPRESENTATIVE POSITION], [CUSTOMER], [CUSTOMER ADDRESS] Email: [CUSTOMER REPRESENTATIVE EMAIL] Provider Representatives: Dr Bob Burns, Ascendancy Solutions Ltd, 1st Floor, Block C The Wharf Manchester Road Burnley BB11 1JG Email: bob.burns@ascendancy-solutions.com Tel: 07770 956344 The parties have indicated their acceptance of the terms of the Agreement by signing below. SIGNED by Bob Burns duly authorised for and on behalf of the Provider .................... Date: SIGNED by [CUSTOMER REPRESENTATIVE], duly authorised for and on behalf of the Customer .................... Date: