THIS AGREEMENT made this .. day of ................2007
PARTIES
1. XXXXXXX XXX of [insert address]

("Xxxxxxx xxx").

2. THE CUSTOMER LIMITED whose registered office is at …………………………………………….
("the Customer").

NOW IT IS AGREED as follows:

1.	DEFINITIONS AND CONSTRUCTION
1.1	In this Agreement the following expressions shall apply (save where the context otherwise requires):
1.1.1	"ASP Fee" means the monthly fee payable for the provision of the ASP Services as set out in Schedule 1 (subject to clause 4.6) and the ASP Fee shall be pro rated where applicable to a period of less than one month.
1.1.2	"Charges" means the ASP Fee, the Consultancy Fees and any other charges payable by the Customer to Xxxxxxx xxx pursuant to this Agreement.
1.1.3	"Commencement Date" means [________].
1.1.4	"Confidential Information" means all know-how, experience, drawings, designs, circuit diagrams, flow charts, computer programs and all other technical information which might reasonably be of commercial interest to a party hereto together with all other information which is of a confidential nature and relates to the business, products, customers, suppliers or pricing of a party hereto (including proposed or anticipated products, customers, suppliers or pricing) and Confidential Information shall include (without limitation):
1.1.4.1	in the case of Xxxxxxx xxx's Confidential Information, the HA Materials; and
1.1.4.2	in the case of the Customer's Confidential Information, all Customer Data.
1.1.5	"Consultancy Services" include:
1.1.5.1	"Ad Hoc Consultancy Services" which means such consultancy services (if any) as Xxxxxxx xxx agrees to provide and the Customer agrees to accept during the Term; and
1.1.5.2	"Specified Consultancy Services" which means those consultancy services which are specified in Schedule 3.
1.1.5	"Consultancy Fees" means:
1.1.6.1	"Time Based Consultancy Fees" which are charged on a time basis applying the current charge rates of Xxxxxxx xxx from time to time (details of current rates are available from Xxxxxxx xxx on request at any time); and
1.1.6.2	"Fixed Price Consultancy Fees" which means a fixed fee for the Specified Consultancy Services as specified in Schedule 3.
1.1.7	"Customer Data" means all data processed by Xxxxxxx xxx or provided to Xxxxxxx xxx for processing or otherwise processed as part of the Services including, but not limited to, data generated by the website from visitor input.
1.1.8	"Customer Equipment" means the hardware and software which the Customer is required to have in use in order to use and enable the Services to be provided in accordance with this Agreement.
1.1.9	"Downtime" means a period during Hosted Application Hours during which there is total loss of the ASP Services.
1.1.10	"Xxxxxxx xxx Hardware" means the hardware used by Xxxxxxx xxx and under its control to provide the Services including any computer hardware acting as system server(s) and which hardware may be modified added to or replaced during the currency of this Agreement provided that the performance thereof is not thereby caused to degrade.
1.1.11	"Xxxxxxx xxx Provided Equipment" equipment provided by Xxxxxxx xxx and installed at the Customer's Site for the purposes of enabling the Customer to use the Services and which equipment is specified as the Xxxxxxx xxx Provided Equipment in Schedule 1.
1.1.12	"HA Materials" means the Hosted Applications (including the software and its operating instructions) and related user manuals, and training materials provided by Xxxxxxx xxx.
1.1.13	"HA Proprietors" means all persons who own the Intellectual Property Rights in the Hosted Applications or who have licence rights in the Hosted Applications or any part or parts thereof and which licence rights are superior to the licence rights of Xxxxxxx xxx and the Customer.
1.1.14	"HA Proprietors" means the software programs or components thereof used by Xxxxxxx xxx to provide the ASP Services which are specified as the Hosted Applications in Schedule 1 as the same may be modified, added to or replaced during the Term.
1.1.15	"Hosted Application Hours" means the hours during which the Services are to be provided as set out in Schedule 1. References to "hour(s)" and "minute(s)" in this Agreement will, unless otherwise indicated, be taken only to refer to the elapse of time during Hosted Application Hours.
1.1.16	"Index" means the Retail Price Index in the Monthly Digest of Statistics published by the Central Statistical Service of HM Government (or, if the same is no longer published, then the most appropriate alternative source of similar data).
1.1.17	"Initial Period" means the period of 36 months commencing on the Commencement Date.
1.1.18	"Intellectual Property Rights" means all copyrights, patents, registered and unregistered design rights, trademarks and service marks and applications for any of the foregoing, together with all trade secrets, know-how, rights to confidence and other intellectual and industrial property rights in all parts of the world and for the full term thereof including all rights to renew the same.
1.1.19	"Month" means a calendar month and "monthly" shall be construed accordingly.
1.1.20	"Network" means a network comprising all or any of the following, namely, modems, leased circuits and other communications hardware and software which will meet the specifications set out in Schedule 1 and which Network may be modified added to or replaced during the currency of this Agreement provided that the performance thereof is not thereby caused to fall materially below the said specifications.
1.1.21	"Outage" means an instance of Downtime.
1.1.22	"Perpetual Licence" means a perpetual, royalty free, non-exclusive licence granted by Xxxxxxx xxx to the Customer where Xxxxxxx xxx retains all Intellectual Property Rights in the relevant materials. The terms of the Perpetual Licence shall entitle the Customer to use, copy, adapt, develop and modify the same for the purpose of the Customer's personal use of the Hosted Applications (regardless of whether such use is through the ASP Services provided by Xxxxxxx xxx, through another ASP or in house) and such licence shall survive the termination of this Agreement.
1.1.23	"Representative" means the person nominated by each party in accordance with clause 13.
1.1.24	"Service Interruption" means a period during Hosted Application Hours during which there is partial loss of the ASP Services.
1.1.25	"Service Levels" means the levels of performance to which the ASP and the Support Services are to be provided to the Customer by Xxxxxxx xxx as set out in Schedule 2.
1.1.26	"Service Level Agreement" means the provisions of Schedule 2.
1.1.27	"Services" means the services to be provided by Xxxxxxx xxx hereunder as the same may be modified, added to or replaced during the Term and in accordance with the provisions of this Agreement and comprising:
1.1.27.1	"ASP Services" the services as described by that name in Schedule 1,
1.1.27.2	"Support Services" the services as described by that name in Schedule 2.
1.1.27.3	"Consultancy Services" as defined at clause 1.1.5
1.1.28	"Site(s)" means the address[es] set out in Schedule 1 and such further or alternative addresses as may be nominated by the Customer being the locations to or at which any Services are to be provided or Equipment is to be delivered or installed by Xxxxxxx xxx.
1.1.29	"System" means the Hosted Applications, the Xxxxxxx xxx Hardware and the Network as the same operate together in the provision of the Services.
1.1.30	"System Management Regulations" means regulations introduced by Xxxxxxx xxx from time to time for the better management of the ASP and Support Services and which may include (but are not limited to):
1.1.30.1	defining minimum specifications for equipment used by the Customer to interface with the Services (including, but not limited to, routers, firewalls and PC's);
1.1.30.2	usage restrictions to prevent unreasonable loads being imposed on the Network;
1.1.30.3	regulations to ensure that security and integrity of the System and the Network is maintained and including regulations which arise from the need to comply with regulations of any data centre facility engaged by Xxxxxxx xxx in connection with the Services; and
1.1.30.4	regulations to ensure that any database or other applications which form part of the ASP Services are used to the best effect and within their capacities.
1.1.31	"Term" means the effective term of this Agreement.
1.1.32	"Tolerances" means instances of diminution of or interruption to the Service Levels as set out in Schedule 2 and which are to be disregarded from the point of view of establishing whether Xxxxxxx xxx has fallen below those performance levels or breached any provision of this Agreement.
1.2	The clause headings and any other headings are inserted for convenience only and shall not affect the construction of this Agreement.
1.3	If any of the parties hereto consist of two or more persons their obligations hereunder shall be joint and several.
1.4	References in this Agreement to any party shall include its respective heirs successors in title permitted assigns and personal representatives and this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.
1.5	In this Agreement the singular includes the plural and vice versa and any gender includes any other gender and the neuter.
1.6	Reference to any statute, statutory provision, by-law, Statutory Instrument or the like includes a reference to such provision as from time to time amended, extended or re-enacted.
1.7	References to clauses, paragraphs or schedules are references to those clauses, paragraphs and schedules in or annexes to this Agreement. This Agreement shall be read with the Schedules to it which shall be deemed incorporated into it.
2.	PROVISION OF SERVICES AND LICENCES
2.1	Xxxxxxx xxx agrees with effect from the Commencement Date in consideration of the payment of the Charges by the Customer to supply to the Customer:
2.1.1	the ASP Services,
2.1.2	the Support Services,
2.1.3	the Specified Consultancy Services (if any), and
2.1.4	such Ad-Hoc Consultancy Services as the parties shall agree upon from time to time during the Term.
2.2	The Services shall be supplied:
2.2.1	on a non-exclusive basis,
2.2.2	in accordance with the Service Level Agreements (where applicable) but subject to the Tolerances, and
2.2.3	upon the terms and conditions of this Agreement.
2.3	In relation to the Consultancy Services Xxxxxxx xxx undertakes to:
2.3.1	perform the same in a professional and diligent manner, and
2.3.2	use its reasonable endeavours to ensure that while its staff are on the Customer's premises they conform to the Customer's normal codes of staff and security practice as notified to Xxxxxxx xxx by the Customer in writing; and
2.3.3	use its reasonable endeavours to maintain continuity in the staff engaged to provide the Consultancy Services.
2.4	The Customer agrees that if, in the course of performing the Services, it is necessary or desirable for Xxxxxxx xxx to access or use any equipment, software or data of the Customer (or which is in the possession of the Customer) then the Customer grants to Xxxxxxx xxx a non-exclusive, royalty free licence, during the Term to use the same solely for the purpose of delivering the Services (including, without limitation and for the avoidance of doubt, Consultancy Services, Support Services, maintenance of the Hosted Applications or the Network and preparing for delivery of the Services) and it is declared that Xxxxxxx xxx shall have no right to use the same for any other purpose or at any other time.
2.5	The following provisions apply to the Hosted Applications:
2.5.1	Xxxxxxx xxx hereby grants to or will procure from the HA Proprietors for the Customer a non-exclusive, royalty free licence, during the Term to use the Hosted Applications and any ancillary software solely for the purpose of using the ASP Services in accordance with this Agreement and it is declared that the Customer shall have no right to use the same for any other purpose or at any other time.
2.5.2	The Customer shall not (i) reproduce, duplicate, disseminate, copy, sell, rent, lease or loan or otherwise disclose any HA Materials; (ii) electronically transmit any HA Materials over a network except as necessary for the Customer's licensed use of the Hosted Applications; (iii) use run-time versions of third-party products embedded in any Hosted Application, if any, for any use other than the intended use of that Hosted Application, (iv) except to any extent permitted by law, modify, disassemble, decompile, or reverse engineer any Hosted Application; (v) sublicense or transfer possession of any copy of any Hosted Application to another party, except, in each such case, with the prior written consent of Xxxxxxx xxx and the relevant HA Proprietor; or (vi) use any Hosted Application in any way not expressly provided for by this Agreement.
2.5.3	Title to the Hosted Applications shall not pass to the Customer. The Customer shall retain the copyright or proprietary rights notice of all the relevant HA Proprietors on all copies of the Hosted Applications and any associated documentation including all such notices as are included on media or in documentation provided by such proprietors. The Customer shall acknowledge that the Hosted Applications are the property of the respective HA Proprietors.
2.5.4	The HA Proprietors disclaim all warranties, express or implied, in favour of the Customer and shall not be liable to the Customer for any damages, whether direct, indirect, incidental or consequential, arising from the use of the Hosted Applications.
2.5.5	At the termination or expiry of the Term the Customer shall discontinue use of the Hosted Applications and shall, at the option of Xxxxxxx xxx, destroy or return such components of the Hosted Applications as shall be in its possession to Xxxxxxx xxx including all archival or other copies.
2.5.6	The HA Proprietors impose certain licence terms and conditions in relation to the use of the Hosted Applications and to the extent that the same are relevant to the Customer the same are set out in Schedule 4. The Customer agrees with Xxxxxxx xxx, and for the benefit of the relevant HA Proprietor, to comply with those terms and conditions.
Further Information
For further information please contact Simon Halberstam at simonh@sghlaw.com or by phone on 020 7544 5595.