SCHEDULE 1

DEFINITIONS

“Agreement”

the terms and conditions in this agreement (including the NCE Subscription Terms) along with the Statement of Work(s), any quotes and any other documents agreed between the Parties in writing.

“Applicable Data Protection Legislation”

to the extent the UK data protection legislation applies, all applicable data protection and privacy legislation in force from time to time in the UK including the “UK GDPR” (as defined in section 3(10) (supplemented by section 205(4)) of the DPA 2018); the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and

to the extent the General Data Protection Regulation ((EU) 2016/679) ("EU GDPR”) applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

“Background Materials”

all Intellectual Property Rights, know-how, information, methodologies, techniques, tools, schemata, diagrams, ways of doing business, trade secrets, instructions manuals and procedures (including, but not limited, to software, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by the Supplier which may have been created outside the scope, or independently of the Services and/or this Agreement, and including all updates, modifications, derivatives or future developments thereof.

“Business Day”

a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

“Business Systems”

the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or any of its agents or contractors.

“Client”

the Client as identified in the Statement of Work.

“Commencement Date”

the date set out in the initial Statement of Work entered into by the Parties under this Agreement.

“Good Industry Practice”

the standards of a skilled and experienced provider of services similar or identical to the Services, having regard to factors such as the nature and size of the Parties, the type of service, service level arrangements, the term, the pricing structure and any other relevant factors.

“Initial Term”

the period specified in the Statement of Work.

“Intellectual Property Rights”

any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of clients, marketing methods and procedures and advertising literature, including the "look and feel" of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world now or in the future.

“IPR Claim”

a claim arising from the infringement of Intellectual Property Rights belonging to third parties.

“Managed Services”

the managed services described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.

“NCE”

means the new commerce experience for Microsoft products or services.

“NCE Subscription Services”

means the services and use related to NCE.

“Normal Business Hours”

9.00 am to 5.00 pm local UK time on Business Days.

“Professional Services”

the professional services described in the Statement of Work to be performed by the Supplier in accordance with this Agreement.

“Rates”

the Supplier’s standard hourly or daily fee rates as set out in the applicable Statement of Work as amended from time to time.

“Relief Events”

the following events:

1. (a) any failure by the Client to comply with its obligations under this Agreement including any Statement of Work;
2. (b) any error or malfunction in the Business Systems or any other software, hardware or systems for which the Supplier is not responsible or any failure by the Client, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which the Supplier is not responsible;
3. (c) any failure by the Client or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to the Supplier which is reasonably required by the Supplier for the proper performance of its obligations under this Agreement;
4. (d) any telecommunications network defect, delay or failure or failure of the Client's hardware or other systems; or  
5. (e) any of the causes or events set out in Clause 6.5.

“Renewal Term”

twelve (12) months commencing on the last day of the Initial Term or previous Renewal Term.

“Retail Prices Index”

the Retail Prices Index (all items, excluding mortgages), or replacement index, as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.

“Scheduled Downtime”

the total amount of time during which the Client is not able to access the Services due to planned maintenance. The Supplier may schedule system downtime, with prior agreement of the Client. Scheduled Downtime periods do not count against any service level calculation detailed in the applicable Statement of Work.

“Services”

the provision of  Managed Services,  Professional Services, Third Party Services and/or NCE Subscription Services including any consulting, advisory, integration or technical services performed by the Supplier under a Statement of Work or otherwise agreed in writing between the Parties.

“Services Commencement Date”

the commencement date set out in the applicable Statement of Work or as otherwise agreed between the Parties for the commencement of the Services.

“Subscription Services”

a right to use the Product(s) for a defined term.  

“Supplier”

POWER 365 SOLUTIONS LTD incorporated and registered in England and Wales with company number 11686187 whose registered office is at 35-36 Eagle Street, London, England, WC1R 4AQ.

“Statement of Work”

the statement of work, order form or proposal which sets out the Services and any service level arrangements under separate cover and which incorporates the terms and conditions of this Agreement.

“Term”

the Initial Term and any Renewal Term, as applicable.

“Third Party”

any third party that supplies Third Party Services to the Supplier and/or the Client (as the case may be) during the provision of the Services.

“Third Party Services”

any services, goods, code or software programs written or provided by a Third Party.

“Third Party Terms”

any licence agreement and/or terms and conditions relating to Third Party Services.

“Unscheduled Downtime”

any time when any or all of the applications and Services provided by the Supplier to the Client shall be unavailable to the Client due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of the Supplier.

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