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]
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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
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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
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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.
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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.
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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.
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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;
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(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.
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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
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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
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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.
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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
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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.
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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
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(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.
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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%
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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.
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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’
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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
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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
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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.
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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.
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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.
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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
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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
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(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.
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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.
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