NOTE: The contract is made up of these Terms and Conditions of Business for the Supply of Software and Services (“Section 1”) and the General Terms and Conditions (“Section 2”).
The specific Parts in Section 1, which apply, will be dependent upon the service that TGSL provides to the Client and shall be specified on an Order Form.
In the case of any conflict or inconsistency between documents then the following order of priority shall apply:
- the most recent Order Form,
- the Supplementary Terms,
- Section 1,
- Section 2, and
- the Acceptable Use Policy.
Section 1
Section 1 is made up of the following Parts:
- Part A: Software
- Part B: Support
- Part C: EDI Services
- Part D: Private Cloud Services
- Part E: Professional Services
- Part F: Public Cloud Services
The following Parts of Section 1 shall apply to the TGSL products identified in the table below:
PART A – Software
1. Licence
1.1. Subject to the terms of this Agreement and in consideration of the payment of the Licence Fee, TGSL grants to the Client a non-exclusive, revocable and non-transferable licence for the Term to use the Licensed Materials within the Territory for the maximum number of Computer Devices or Users respectively, specified on the Order Form. In respect of the client application each Computer Device or User requiring access to the Licensed Materials must be individually licensed and the appropriate Licence Fee paid in respect of each Computer Device or User.
2. Permitted Use
2.1. The Client is only permitted to use the Software on the specified servers, and for the specified number of Computer Devices or Users. The Client may increase the number of licensed Computer Devices or Users upon payment of an increased Licence Fee. This can be arranged by contacting TGSL.
2.2. The Client must connect to the TGSL network on a regular basis which must be a minimum of once per week.
2.3. The Client is licensed to use the Software and Database for processing its own data for its own business purposes and such customer data as it would usually process in the ordinary course of its business (which the Client hereby warrants does not and will not comprise or include the provision of any bureau, time-sharing, facilities management or computer processing services (whether alone or together with other services) to third parties). The Client shall not directly or indirectly permit any third party to use or have the use of the Licensed Materials, nor use them on behalf of or for the benefit of any third party other than in the normal course of the Client’s business. The Client is not permitted to allow any third party access to the quotation engines provided with the Software or to transfer or distribute (whether by licence, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber all or any part of the Licensed Materials to any other person.
2.4. The Client is not permitted to decompile, disassemble or reverse engineer the Software (nor, by way of example and without limitation, to utilise third party query languages to alter the same). However, TGSL is prepared to make available facilities to enable the Client to access information that will help the Client achieve interoperability with other software. The Client may on fourteen (14) days’ notice (or within such period as the parties reasonably agree otherwise) have access to such facilities during Business Hours for that purpose. TGSL reserves the right to levy reasonable charges in respect of the resources it supplies.
2.5. The Client may not copy, modify or adapt or create derivative works of the Licensed Materials or incorporate the same in computer programs not supplied by TGSL save as expressly permitted under this Agreement or otherwise without the express written consent of TGSL.
2.6. The Client undertakes not to rent, lease, sub-license, lend otherwise dispose of or purport to dispose of, part with or transfer whether for value or otherwise, the whole or any part of the Licensed Materials.
2.7. Without prejudice to any other rights arising from the Client’s breach, in the event of such unauthorised modification or adaptation of the Software, TGSL reserves the right to discontinue any warranty or support service in relation to such adapted or modified Software or terminate this Agreement with immediate effect without prejudice to any of its rights and remedies at law or otherwise.
2.8. The Client may extract data from the Database using its own computer programs and data extraction tools. The Client must not copy the Licensed Materials, nor any part of them in doing so.
2.9. The Client may not input data into the Database except via the Software or a method previously approved in writing by TGSL.
2.10. The Client agrees not to alter the structure of the Database supplied with the Software; this does not affect the Client’s right to enter data into the Database.
2.11. For non-hosted solutions, use of the Licensed Materials is restricted to use on and in conjunction with the Computer Devices and equipment at the Location(s) or, in the case of Private Cloud Services, within the Cloud Environment, save that:
2.11.1. the Client may, with the prior written consent of TGSL, use the Licensed Materials on and in conjunction with any replacement or additional equipment (to be specified by type) subject to the following: (i) in the event that the replacement/additional equipment is on a platform which is not supported by TGSL, TGSL shall have the opportunity to investigate the operability of the Software and Database on such equipment; or (ii) in any event, where such replacement or additional equipment is on a platform which is supported by TGSL, it reserves the right, with the agreement of the Client to verify the operability of the Software and Database on any replacement/additional equipment; in either instance, TGSL reserves the right (with the prior agreement of the Client) to charge the Client for any investigative and/or verification works (as the case may be) in accordance with its then current applicable rates, or such rates as may be otherwise agreed reasonably between the parties. Upon TGSL’s consent being granted pursuant to this clause 2.11.1 of Part A and on payment of any additional relevant charge, any replacement equipment shall become the equipment on which the Software is licensed to operate.
2.12. The use of the Licensed Materials with them on and in conjunction with such temporary replacement or additional equipment identified in clause 2.11 of Part A above shall be at the sole risk and responsibility of the Client and TGSL shall not have any liability under this Agreement in connection with such use, unless agreed otherwise in writing.
2.13. The Client shall follow good practice and/or such reasonable guidance notified to the Client from time to time by TGSL in the matters of house-keeping. For non-hosted Software, the Client should undertake and validate regular back-ups so as to minimise the risk of loss or failure from any fault in or failure of the Database and/or the Software. Back-ups should, in particular, be kept offsite, either in secure file repositories, or if on physical media, in a secure, fireproof environment. A register of all such copies should be maintained as evidence of compliance with the Client’s obligations under this Agreement. For the avoidance of doubt, TGSL shall not be liable for any losses, damages or costs (whether direct, indirect, consequential or otherwise) incurred by the Client that arise from the Client’s failure to comply with its obligations under this clause. The Client should be aware that this Agreement does not provide for the supply of disaster recovery services unless explicitly stated in the Order Form.
2.14. The Software contains security features that aid TGSL to ensure compliance with the terms of the software licence granted to the Client. In the event that the Client intends to replace or add new equipment, the Client will have to contact TGSL to gain access to the Software.
2.15. Without prejudice to any other provisions of this Agreement, the Client may with the prior consent of TGSL, such consent not to be unreasonably withheld or delayed, change the Location of the Software and the Database supplied with them. The new location shall become the Location for the purposes of this Agreement. Any assistance required by the Client from TGSL in connection with, or as a result of, such change of location shall be charged to the Client in accordance with TGSL’s standard rates in force at that time.
2.16. The Client hereby acknowledges that it is licensed to use the object code of the Software only and only then in accordance with the express terms of this Agreement and not further or otherwise notwithstanding any other agreement between either party and/or a third party.
2.17. The Client hereby undertakes that it shall comply with all local national or international laws, regulations, permits, licenses, orders and other restrictions that are applicable to the purchase and use of the Licensed Materials and the Services under this Agreement.
2.18. If the Client supplies its own equipment for use with the Software, the Client is solely responsible for the choice of equipment and operating systems that it uses in conjunction with the Software.
2.19. The Client shall permit TGSL, its subcontractor or agent, on reasonable prior notice, to inspect and have access to any premises, and to the Computer Devices located there, at or on which the Licensed Materials are being kept or used, and any records kept pursuant to this Agreement, to verify that the use of the Licensed Materials by the Client is in accordance with the terms of this Agreement. Such inspection shall be restricted in scope, manner and duration to that reasonably necessary to verify compliance. The Client shall upon TGSL’s request provide information to TGSL (as applicable) relating to the usage and licensing of the Licensed Materials. Alternatively, TGSL may require the Client to operate and run a tool or program provided by TGSL on the Computer Devices in order to verify that the Client’s use of the Licensed Materials complies with the terms of this Agreement. In the event that any such inspection uncovers an underpayment of fees then the Client shall immediately pay to TGSL the amount of such underpayment plus the reasonable costs incurred by TGSL in conducting the inspection.
2.20. Where TGSL makes a recommendation regarding equipment that should be used with the Software, TGSL will only have regard to those matters that relate solely to the running of the Software and nothing else. TGSL does not warrant that equipment acquired to run the Software will run with Upgrades or any third party software at the performance levels achieved early in the equipment’s life or at all. The Client may decide to load and run third party software or features of the operating system not usually used with the Software which shall be entirely at its own risk. The Client recognises that it may in the future have to acquire additional equipment and third party software features to ensure that system performance levels are maintained.
2.21. Where the Client acquires third party software for use with the Software other than from TGSL, the Client is solely responsible for ensuring that it acquires the correct version.
2.22. The Client agrees to acquire updated versions and upgrades to any third party software and equipment recommended or required for use in conjunction with the Software and future Upgrades from time to time by TGSL.
3. Delivery, Installation and Acceptance
3.1. Unless otherwise agreed and contracted under Part D (Private Cloud Services), and where Private Cloud Services are not provided, the Client shall run the standard installation routines for the Software and the Database on the licensed Computer Devices at the Location(s) within one week of delivery by TGSL. When prompted or requested to do so, the Client must contact TGSL during the installation process to enable certain security features.
3.2. The Software will be deemed accepted by the Client on the earliest occurrence of one of the following events:
3.2.1. use of the Software, or any part of it, by the Client in a live environment; or
3.2.2. in the absence of any errors reported by the Client to TGSL, one week after delivery.
4. Updates and Maintenance Releases
4.1. Inconsideration for payment of the Licence Fees, TGSL agrees to supply Updates to the Client, as and when these are released which shall be at the sole discretion of TGSL.
4.2. From time to time, TGSL may also release a Maintenance Release which the Client will be required to install upon receipt.
4.3. THE CLIENT’S ATTENTION IS DRAWN PARTICULARLY TO THIS CLAUSE. Updates are supplied to the Client in the belief that they are as accurate as reasonably possible. Updates shall not be taken to be representations made by TGSL and are provided “AS IS”. They carry no warranty regarding the accuracy of the data contained in them and consequently TGSL accepts no liability in respect of the accuracy of the Updates whatsoever.
4.4. TGSL does not warrant that the media on which Updates are supplied will be error free.
PART B – Support
1. Support Services
1.1. Upon payment of the Fees and compliance with the terms of the Agreement, the Client is entitled to receive the benefit of the Support provided by TGSL for the Services specified on an Order Form.
1.2. Support shall take the form of responding to requests for support received from the Client, problem diagnosis and resolution, the development of Fixes and the provision of technical support.
1.3. A dedicated call centre will be operated by TGSL during Support Hours for requests for support to be raised and logged with TGSL.
1.4. Support may be performed at one of TGSL’s premises or via a secure connection to the Client’s premises as TGSL determines. At the request of TGSL, the Client shall provide a secure connection approved for the purposes of TGSL providing remote connection to the equipment hosting or accessing the Software. The Client shall provide access to and copies of such data as TGSL may reasonably require for the performance of the Support.
1.5. Any request for additional support which is not included within the Fee may be made in accordance with Part F (Professional Services).
2. Reporting an Incident
2.1. All Incidents must be logged with TGSL via the Support Centre portal. The Client shall supply to TGSL a detailed description of any fault requiring attention. The Support Centre is open during the Support Hours. Any one of the individuals previously notified to TGSL as having the authority to log telephone calls for Support on behalf of the Client may contact the Support Centre for Support.
2.2. Major Incidents must be logged by phoning the dedicated Support Centre to action the request promptly and should be logged online via the Support Centre portal.
2.3. Dependent upon the nature of the Incident it will be logged and allocated a priority level in accordance with the following table and definitions:
3. Response Times
3.1. The priority of an Incident will be determined and agreed at the time the Incident is logged with the Support Centre. The severity of the situation will need to be made clear at the time of the Incident being logged with TGSL to ensure the appropriate priority is allocated. Failure to convey the business impact of an Incident may result in the Incident being classified as a lower priority. In the event that TGSL receives a request from the Client for Support during the Support Hours, TGSL shall use reasonable commercial endeavours to respond by telephone or e-mail within the target response times for the priority level setout below. Response times shall be measured from the time TGSL has logged and classified the Incident.
Support will respond to the Client within the target response time aligned to the priority level assigned in accordance with the above table. Response will be via the Support Centre. In the event of a Cat A priority level, TGSL may also phone the Client. Requests received outside of Support Hours will be logged at the start of the next Business Day.
4. Resolution Times
4.1. TGSL shall use reasonable endeavours to resolve Incidents as soon as possible. Resolution may take the form of a Fix or a Workaround. Where a Workaround is provided, the Incident may be reclassified as a lower priority.
4.2. Due to the unpredictable nature of diagnosing software problems, TGSL is unable to provide any commitment with regard to timescales for providing Fixes and Workarounds. In the event of an Incident categorised as CAT A by TGSL, it shall commence work immediately and shall continue working during the Support Hours on providing a Fix or a Workaround. In the event of an Incident categorised as a CAT B, TGSL shall provide a Fix or a Workaround taking into consideration the significance of the Incident and the impact it may have on the Client’s use of the Licensed Materials.
5. Support Exclusions
5.1. Support shall not include the diagnosis and rectification of a fault resulting from:
5.1.1. the improper use, operation or neglect of either the Software, operating system or equipment hosting it;
5.1.2. the modification or alteration of or interference with (i) the Software or its merger (in whole or in part) with any other software or (ii) the Services;
5.1.3. the use of the Software or Services by an individual or User who has not undergone training to the required level or is not otherwise reasonably competent in the use of the Software or the Services;
5.1.4. the use of the Software or the Services on equipment or in conjunction with software which does not meet TGSL’s specifications to run the Software or Services or in the case of Software, on equipment or with software, not approved by and notified to TGSL or in conjunction with an operating system not approved by and notified to TGSL. For the avoidance of doubt, third party software or equipment should be supported and maintained by its owner or nominated agent and will not be supported and maintained by TGSL;
5.1.5. the failure by the Client to implement recommendations in respect of, or solutions to, faults previously advised by TGSL;
5.1.6. a repair, adjustment, alteration or modification of the Services or the Software or configuration of third party software supplied by TGSL by any person other than TGSL save with the prior written authority of TGSL;
5.1.7. the use of the Software or Services for a purpose for which they are not designed;
5.1.8. a fault in any third party software or software other than the Software (including the operating system used on the equipment on which the Software operates)
5.1.9. a fault in any Third Party Software which is used by the Client in conjunction with the Services;
5.1.10. breach by the Client of its obligations under this Agreement; or
5.1.11. any circumstances beyond the control of TGSL, its subcontractors or its agents including, without limitation, failures on the part of Third Party Software providers, telephone communication failure, power failure, fire or other Force Majeure events.
5.2. Support shall not include support requested by the Client out of Support Hours or the diagnosis and rectification of a fault arising in a version or release of the Software which is not either the then current version or one of the two versions immediately preceding the then current version of the Software (including all supplied Fixes).
6. Planned Maintenance
6.1. TGSL will conduct Planned Maintenance outside Business Hours in order to minimise the amount of Downtime. The Client will be notified of the Planned Maintenance undertaken by TGSL, which may be subject to change from time to time. Any such changes will be notified to the Client. Except in the case of Emergency Maintenance, TGSL shall advise the Client prior to any Planned Maintenance which shall occur during the Business Hours.
6.2. TGSL may undertake planned business continuity testing and vulnerability testing twice per annum and each shall last for no more than twelve (12) hours. Planned testing is excluded from the calculation of downtime.
6.3. TGSL shall not be liable for any damages or costs incurred by the Client or any User during or as a result of Planned Maintenance or Emergency Maintenance.
Part C – EDI Services
1. EDI Services
1.1. Where indicated on the Order Form, TGSL will provide EDI Services to the Client.
1.2. The Client hereby agrees to the temporary storage of customer risk data in the Cloud Environment until it is transferred to the insurer.
1.3. If agreed by TGSL, the EDI Services may involve standard installation and configuration of Third Party Software but not customisation work.
Part D – Private Cloud Services
1. TGSL Responsibilities
1.1. Where this is indicated on the Order Form, TGSL shall provide Private Cloud Services to the Client during the Core Hours.
1.2. Unless otherwise noted on the Order Form, TGSL shall, at its own expense, install, operate and maintain the Cloud Environment for the Client and Users to access and use the Software as permitted under this Agreement and the applicable Order Form.
1.3. TGSL will provide and maintain the Cloud Environment and bandwidth on TGSL’s side of the Demarcation Point to support the Client’s use of the Private Cloud Services.
1.4. TGSL will undertake vulnerability testing to detect any vulnerabilities in the Private Cloud Services on a regular basis.
1.5. TGSL shall ensure that the assets used in providing the Private Cloud Services will be maintained, protected and adequately insured throughout the term of the Agreement.
2. Client Responsibilities
2.1. It is a condition of taking the Private Cloud Services that the Client will procure Professional Services from TGSL to support and update its Content, which is contained on the Cloud Environment.
2.2. The Client acknowledges that the transmission of data over the internet involves inherent risk and that such transmissions of data cannot be fully secured against access by third parties. The Client agrees that TGSL shall not be responsible for any loss or corruption of the Client Data which occurs during or as a result of transmitting Client Data via the internet or where an unauthorised third party accesses the Client Data or Content.
2.3. The Client is not permitted to undertake penetration testing without the prior written consent of TGSL.
2.4. The Client is required to take reasonable security precautions when granting access to its Users to the Private Cloud Services. The Client must (i) notify TGSL immediately of any unauthorised use of any password or account or any other known or suspected breach of security and (ii) use reasonable efforts to stop any copying or distribution of Content that is known or suspected by the Client or its permitted Users.
2.5. The Client shall be solely responsible for any damage to the Client Data, the Software or the Cloud Environment caused by (i) the negligent or wilful misconduct of the Client’s employees, contractors and Users to whom the Client has provided access to the Private Cloud Services; (ii) the conduct of any third party and Users that have accessed the Cloud Environment using the Client’s passwords through no fault of TGSL; and (iii) the Client’s failure to comply with all laws applicable to the Client’s business.
2.6. In connection with providing the Private Cloud Services, the Client agrees to: (i) maintain the equipment, lines and connections necessary for the Client’s Users to access the Cloud Environment; (ii) perform any tests or procedures recommended by TGSL for the purpose of identifying and/or resolving any problems; (iii) at all times follow routine operator procedures as specified in any use guidelines; (iv) maintain sufficient technical controls such as the latest anti-virus protection software on all technology connecting to the Private Cloud Services; (iv) comply with the Acceptable Use Policy; and (v) at all times comply with the reasonable rules and policies of any third party co-location vendor utilised by TGSL in connection with providing the services hereunder.
2.7. The Client is solely responsible for providing all internal technical support and training to its Users, maintaining connectivity of the Users to the internet and the Demarcation Point and validating the accuracy of the Client Data in the Cloud Environment.
2.8. The Client is solely responsible for the management of network, computers, software, telecommunications and devices external to the Private Cloud Services.
2.9. The Client shall not exceed the resource utilisation as specified in the Order Form and the Acceptable Use Policy. If the Client exceeds any of the agreed resource utilisations, the Client shall either reduce its utilisation of the Private Cloud Services to conform to such limits or pay incremental fees associated with TGSL’s support of additional capacity.
2.10. The Client is solely responsible for database or application server performance issues that may arise from customisations (including reports) introduced into the Private Cloud Services by the Client.
The Client shall, and shall procure that its Users, follow good practice, the Acceptable Use Policy and/or such reasonable guidance notified to the Client from time to time by TGSL in its use of the Private Cloud Services.
3. Data Back Up
3.1. Data held by TGSL will be backed up in accordance with the back up schedule(s) for the relevant Service and stored in secure file repositories.
4. Exclusions and Limitations
4.1. The Client acknowledges that inevitably some non-material errors may exist in the Cloud Environment and/or Software and the presence of such errors shall not be abreach of this Agreement. If the Client adds Users, additional software products, is dissatisfied with the speed or performance of the Private Cloud Services or if the database capacity should prove insufficient for the Client’s actual database requirements, TGSL shall be entitled to charge additional fees in order to deliver the Private Cloud Services. In each case, the Client shall either: (a) limit its use of the Cloud Environment to conform to the original agreed capacity or (b) elect to receive an upgrade to the Cloud Environment subject to additional payment to TGSL at TGSL’s then current rates. The Client acknowledges that, if applicable, the performance of the Cloud Environment in transmitting outbound e-mails maybe adversely affected by the accuracy of the Client’s e-mail addresses.
5. Third Party Products
5.1. If the Client’s continued use of the Private Cloud Services requires additional third party products beyond those originally required as of the commencement date the Client shall reimburse TGSL at TGSL’s then list price in respect of obtaining any such upgrade or new product.
6. Private Cloud Services Availability
6.1. TGSL shall use reasonable commercial endeavours to provide availability of the Private Cloud Services during the Core Hours. When calculating Downtime for the purposes of clauses 6.2 and 6.3 of Part D, unavailability which is attributable to the following will be excluded from the calculation: (a) a breach of any of the Client Responsibilities; (b) failure or malfunction of any equipment or services selected by the Client not provided by TGSL; (c) Planned Maintenance; (d) Emergency Maintenance, (e) planned business continuity testing described in clause 6.2 of Part B (f) a Force Majeure Event, (g) issues on the Client side of the Demarcation Point, (h) improper use of the Private Cloud Services by Users and the Client, (i) application errors of the operating or database systems or (j) services requested by the Client. The Core Hours used to calculate Downtime shall be the applicable Core Hours for the Private Cloud Services as stated in the relevant Order Form.
6.2. If the Private Cloud Services are unavailable during the applicable Core Hours for more than two per cent (2%) of the applicable Core Hours during any month due to Downtime, the Client shall be entitled to a credit of up to five percent (5%) of its monthly Private Cloud Services Licence Fees for such month. The amount of credit to which the Client shall be entitled shall be the monthly Private Cloud Services Licence Fee applicable to that month multiplied by the percentage system unavailability in that month subject to an overall limit of five per cent (5%) of the monthly Private Cloud Services Licence Fee for that month. The provision of a credit shall be the Client’s exclusive remedy in relation to Private Cloud Services Downtime. For the purpose of this clause, “percentage system unavailability” shall mean the percentage derived by dividing (x) which shall be the total number of minutes during the applicable Core Hours that the Private Cloud Services are unavailable due to Downtime in such month by (y) which shall be the total number of minutes during the applicable Core Hours in that month.
6.3. If for any reason other than a Force Majeure Event (a) Downtime for Private Cloud Services is greater than ten per cent (10%) for one calendar month or (b) Private Cloud Services Downtime for each of the prior consecutive three (3) months is greater than five per cent (5%), the Client shall be entitled to terminate the Private Cloud Services and receive a refund of any Private Cloud Services Licence Fees paid to TGSL in relation to the post-termination period. Written notice of termination must be given to TGSL within 60 days of the relevant Downtime.
Part E – Professional Services
1. Nature of Professional Services
1.1. Professional Services will be provided where requested by the Client, as a result of any change request from the Client or where changes are necessary due to any change in law or regulation which affects the Services. The nature of the Professional Services requested will be as detailed on the Order Form. TGSL shall have the sole discretion to accept any Professional Services requests or changes by the Client.
1.2. Professional Services must be taken by the Client within twelve (12) months of the date of the Order Form. The Client shall remain liable to pay for the Professional Services ordered irrespective of whether the Client has taken the Professional Services.
1.3. In order to enable TGSL to perform the Professional Services the Client shall make available such assistance, information, facilities (including adequate working space and office facilities), documentation and other matters as may be reasonably requested by TGSL. The Client shall provide TGSL with full, safe and uninterrupted access (including remote access and system access privileges) to the Client’s premises, systems and customer environment as may reasonably be required for the purpose of performing the Professional Services.
1.4. In the event that Professional Services provided under this Agreement involve installation and configuration of third party software and products, the Client acknowledges and agrees that these activities do not include customisation of such third party software and products to the Client’s requirements. Professional Services only include standard installation of third party products unless expressly agreed in writing by TGSL. Any equipment or third party software and products which are not sourced through TGSL and which the Client has requested TGSL to connect or configure, TGSL will use its reasonable endeavours to meet the Client’s requirements but it cannot be held liable in the event it is unable to meet such requirements.
1.5. TGSL and the Client shall agree and document the scope of any development work required. The Intellectual Property Rights in such development work will vest in TGSL in accordance with the General Terms and Conditions. The Client is granted a licence to use any development work following completion in accordance with clause 1.1 of Part A. For the avoidance of doubt, any Additional Software developed under this Agreement at the request of the Client will not be covered by the Support and, unless specifically agreed in writing by TGSL, shall not be subject to Updates. Following completion of any Additional Software under this Agreement the annual Service Fee payable by the Client shall be increased by twenty per cent (20%) of the cost of the Additional Software.
1.6. Where TGSL provides Professional Services which involve the setup or use of a third-party software or hardware solution (including, but not limited to backup solutions), the Client shall be responsible for ongoing administration and maintenance of the solution. TGSL does not accept any liability for any failure of the third-party software or hardware.
1.7. Unless otherwise stipulated in an Order Form, all Professional Services are deemed accepted by the Client on their delivery or completion whichever is the later.
2. Data Transfer Services
2.1. Where this is indicated on the Order Form, TGSL shall provide Data Transfer Services to the Client. The Client chooses the data that it requires to be transferred. TGSL will provide a detailed technical specification of the extent, matter and format of the data to be transferred into the Database (all at the Client’s own expense). The Client will deliver or allow retrieval of the data to be transferred into the Database to TGSL (at the Client’s expense) in a secure manner using media advised by TGSL. TGSL will carry out the Data Transfer Services with reasonable care and skill. However, TGSL does not warrant that the provision of Data Transfer Services will result in successful population of the Database or that any data transfer will work at all.
2.2. Upon completion, TGSL will return the data and any media in a secure manner using the method in which it was retrieved. The Client undertakes to load the converted data from the media into a test area, to test the data and approve its use with the Software prior to going live. The Client shall make and keep a backup of all data it supplies to TGSL prior to handing this over to TGSL.
2.3. Data Transfer Services are deemed accepted by the Client on receipt of the media from TGSL containing the Client Data pursuant to clause 2.1 of Part F.
2.4. The Client indemnifies TGSL fully against all liabilities, costs, claims and expenses which TGSL may incur as a result of work done in accordance with the Client’s contribution to the provision of the Data Transfer Services whether involving infringement of a third party’s Intellectual Property Rights or otherwise.
Part F – Public Cloud Services
1. Access Rights
1.1. Subject to the terms of this Agreement and in consideration of the payment of the specified Fee, TGSL grants to the Client a personal, non-exclusive, revocable and non-transferable right to access and use the applicable Public Cloud Services specified on the Order Form in the Territory. The number of Users permitted to access the Public Cloud Services shall be specified on the Order Form.
2. Permitted Use
2.1. The Client is permitted to use the Public Cloud Services for processing its own data for its own business purposes and such customer data as it would usually process in the ordinary course of its business (which the Client hereby warrants does not and will not comprise or include the provision of any bureau, time-sharing, facilities management or computer processing services (whether alone or together with other services) to third parties). Other than via the Approved APIs, the Client shall not directly or indirectly permit any third party to use or access the Public Cloud Services, nor use them on behalf of or for the benefit of any third party other than in the normal course of the Client’s business. The Client is not permitted to allow any third party access to the quotation engines or access to any outputs from the quotation engines provided with the Software (other than via the Approved APIs) or to transfer or distribute (whether by licence, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber all or any part of the Licensed Materials to any other person.
2.2. The Client is not permitted to decode, decompile, disassemble, reverse engineer or otherwise translate or make alterations to the Public Cloud Services or the Approved APIs (nor, by way of example and without limitation, to utilise third party query languages to alter the same), convert the Public Cloud Services or the Approved APIs, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the Public Cloud Services or the Approved APIs, other than as expressly permitted under sections 50B and 296A of the Copyright Designs and Patents Act 1988 (and then only upon advance notice in writing to TGSL) .
2.3. The Client may not copy, modify or adapt or create derivative works of the Public Cloud Services or the Approved APIs or incorporate the same in computer programs not supplied by TGSL save as expressly permitted under this Agreement or otherwise without the express written consent of TGSL.
2.4. The Client undertakes not to rent, lease, sub-license, lend or otherwise dispose of or purport to dispose of part with or transfer whether for value or otherwise, publicly display to third parties the Public Cloud Services or the Approved APIs.
2.5. Without prejudice to any other rights arising from the Client’s breach, in the event of such unauthorised modification or adaptation of the Public Cloud Services or the Approved APIs, TGSL reserves the right to discontinue any warranty or support service in relation to such adapted or modified Public Cloud Services, suspend the Services or terminate this Agreement with immediate effect without prejudice to any of its rights and remedies at law or otherwise.
2.6. The Client may extract data from the Database using the Approved APIs computer programs and data extraction tools approved in advance in writing by TGSL. The Client must not copy the Public Cloud Services or the Approved APIs, nor any part of them in doing so.
2.7. The Client may not input data into the Database except via the tools made available as part of the Public Cloud Services or such other methods approved in advance in writing by TGSL.
2.8. The Client agrees not to alter the structure of the Database supplied with the Public Cloud Services; this does not affect the Client’s right to enter data into the Database.
2.9. The permissions granted by TGSL to enable the Client to input or extract data under either clauses 2.6 or 2.7 of Part F are given on the express condition that there is no adverse impact to TGSL’s products or income streams. In the event of any breach of this condition TGSL reserves the right to suspend or terminate the Public Cloud Services.
2.10. The Client shall, and shall procure that its Users, follow good practice, the Acceptable Use Policy and/or such reasonable guidance notified to the Client from time to time by TGSL in its use of the Public Cloud Services.
2.11. To the extent Third Party Software is made available to, or used by or on behalf of, the Client or any User in connection with the use or provision of the Public Cloud Services, such use of Third Party Software shall be subject to any additional third party terms which are communicated to the Client.
2.12. Data held by TGSL will be backed up in accordance with its back up schedule(s) for the relevant Service and stored in secure file repositories. The Client should be aware that this Agreement does not provide for the supply of disaster recovery services due to an event in the Customer’s business unless explicitly stated in the Order Form.
2.13. TGSL reserves the right to disable Users who are inactive for a prolonged period on the Public Cloud Services. Where a User has been disabled, the Client may contact TGSL to re-enable the User and restore the Users access to the Public Cloud Services.
3. Client Responsibilities
3.1. The Client hereby undertakes that it shall complywith all local national or international laws, regulations, permits, licenses, orders and other restrictions that are applicable to the use of the Public Cloud Services under this Agreement.
3.2. The Client acknowledges that in order to access the Public Cloud Services it will be necessary for the Client to ensure that its operating systems and software meet the required specifications communicated to it by TGSL from time to time. Where TGSL makes a recommendation or requirement regarding equipment or software that should be used to access the Public Cloud Services, TGSL will only have regard to those matters that relate solely to the running of the Public Cloud Services and nothing else. TGSL does not warrant that equipment or software acquired to access the Public Cloud Services will run with Upgrades or any third party software at the performance levels achieved early in the equipment or software’s life or at all. Subject to TGSL’s recommendations or requirements, the Client is solely responsible for the choice of equipment and operating systems that it uses in conjunction with the Public Cloud Services.
3.3. The Client acknowledges that the transmission of data over the internet involves inherent risk and that such transmissions of data cannot be fully secured against access by third parties. The Client agrees that TGSL shall not be responsible for any loss or corruption of the Client Data which occurs during or as a result of transmitting Client Data via the internet or where an unauthorised third party accesses the Client Data or Content.
3.4. The Client is not permitted to undertake penetration testing without the prior written consent of TGSL.
3.5. The Client is required to take reasonable security precautions when granting access to its Users to the Public Cloud Services. The Client must (i) notify TGSL immediately of any unauthorised use of any password or account or any other known or suspected breach of security and (ii) use reasonable efforts to stop any copying or distribution of Content that is known or suspected by the Client or its permitted Users.
3.6. The Client shall be solely responsible for any damage to the Client Data, the Software or the Database caused by (i) the negligent or wilful misconduct of the Client’s employees, contractors and Users to whom the Client has provided access to the Public Cloud Services; (ii) the conduct of any third party and Users that have accessed the Public Cloud Services using the Client’s passwords through no fault of TGSL; and (iii) the Client’s failure to comply with all laws applicable to the Client’s business.
3.7. In connection with providing the Public Cloud Services, the Client agrees to: (i) maintain the equipment, lines and connections necessary for the Client’s Users to access the Public Cloud Services; (ii) perform any tests or procedures recommended by TGSL for the purpose of identifying and/or resolving any problems; (iii) at all times follow routine operator procedures as specified in any use guidelines; (iv) maintain sufficient technical controls such as the latest anti-virus protection software on all technology connecting to the Public Cloud Services; (v) connect to the Public Cloud Services using technology which is compatible for use with the Public Cloud Services as notified to it by TGSL and (iv) at all times comply with the reasonable rules and policies of any third party co-location vendor utilised by TGSL in connection with providing the services hereunder.
3.8. The Client is solely responsible for providing all internal technical support and training to its Users, maintaining connectivity of the Users to the internet and validating the accuracy of the Client Data stored in the Public Cloud Services.
3.9. The Client is solely responsible for the management of network, computers, software, telecommunications and devices external to the Public Cloud Services.
3.10. The Client shall not exceed the resource utilisation or usage limits as may be specified in the Order Form, Documentation and the Acceptable Use Policy. If the Client exceeds any of the agreed resource utilisations or usage limits, the Client shall either reduce its utilisation of the Public Cloud Services to conform to such limits or pay incremental fees associated with TGSL’s support or provisioning of additional capacity.
4. Acceptance, Updates and Maintenance Releases
4.1. The Public Cloud Services will be deemed accepted by the Client upon the earliest occurrence of one of the following events (i) use of the Software, or any part of it, by the Client in a live environment, (ii) in accordance with a project plan agreed by the parties or (iii) ten (10) weeks after the Client has been set up as a tenant on Public Cloud Services platform.
4.2. In consideration for payment of the applicable Fees, TGSL shall release Updates to the Public Cloud Services from time to time which shall be at the sole discretion of TGSL.
4.3. From time to time, TGSL may also release a Maintenance Release to the Public Cloud Services.
4.4. THE CLIENT’S ATTENTION IS DRAWN PARTICULARLY TO THIS CLAUSE. Updates are supplied to the Client in the belief that they are as accurate as reasonably possible. Updates shall not be taken to be representations made by TGSL and are provided “AS IS”. They carry no warranty regarding the accuracy of the data contained in them and consequently TGSL accepts no liability in respect of the accuracy of the Updates whatsoever.
5. Exclusions and Limitations
5.1. The Client acknowledges that inevitably some non-material errors may exist in the Public Cloud Services and/or Software and the presence of such errors shall not be a breach of this Agreement. If the Client adds Users, additional software products, is dissatisfied with the speed or performance of the Public Cloud Services or if the database capacity should prove insufficient for the Client’s actual database requirements, TGSL shall be entitled to charge additional fees in order to deliver the Public Cloud Services. In each case, the Client shall either: (a) limit its use of the Public Cloud Services to conform to the original agreed capacity or (b) elect to receive an upgrade to the Public Cloud Services, where applicable, subject to additional payment to TGSL at TGSL’s then current rates. The Client acknowledges that, if applicable, the performance of the Public Cloud Services in transmitting outbound e-mails may be adversely affected by the accuracy of the Client’s e-mail addresses.
6. Third Party Products
6.1. If the Client’s continued use of the Public Cloud Services requires additional Third Party Software beyond those originally required as of the commencement date the Client shall reimburse TGSL at TGSL’s then list price in respect of obtaining any such upgrade or new product.
7. Public Cloud Services Availability
7.1. TGSL aims to make the Public Cloud Services available 99.9% of the time and undertakes that Downtime of the Public Cloud Services during the Business Hours shall be less than two per cent (2%). When calculating Downtime for the purposes of this clause 7 of Part F, Downtime is calculated based on Business Hours and unavailability which is attributable to the following will be excluded from the calculation: (a) a breach of any of the Client Responsibilities; (b) failure or malfunction of any equipment or services selected by the Client not provided by TGSL; (c) Planned Maintenance; (d) Emergency Maintenance; (e) planned business continuity testing described in clause 6.2 of Part B; (f) a Force Majeure Event; (g) issues on the Client side of the Demarcation Point; (h) improper use of the Public Cloud Services by Users and the Client; (i) application errors of the operating or database systems; or (j) services requested by the Client.
7.2. If the Public Cloud Services are unavailable during the Business Hours for more than two per cent (2%) of the applicable Business Hours during any month due to Downtime, the Client shall be entitled to a credit of up to five per cent (5%) of its monthly Public Cloud Services Licence Fees for such month. The amount of credit to which the Client shall be entitled shall be the monthly Public Cloud Services Licence Fee applicable to that month multiplied by the percentage system unavailability in that month subject to an overall limit of five per cent (5%) of the monthly Public Cloud Services Licence Fee for that month. The provision of a credit shall be the Client’s exclusive remedy inrelation to Downtime for the Public Cloud Services. For the purpose of this clause, “percentage system unavailability” shall mean the percentage derived by dividing (x) which shall be the total number of minutes during the applicable Business Hours that the Public Cloud Services are unavailable due to Downtime in such month by (y) which shall be the total number of minutes during the applicable Business Hours in that month.
7.3. If for any reason other than a Force Majeure Event (a) Public Cloud Services Downtime is greater than ten per cent (10%) for one calendar month or (b) Public Cloud Services Downtime for each of the prior consecutive three (3) months is greater than five per cent (5%), the Client shall be entitled to terminate the relevant Public Cloud Services and receive a refund of any Public Cloud Services Licence Fees paid to TGSL in relation to the post-termination period. Written notice of termination must be given to TGSL within 60 days of the relevant Downtime.
7.4. TGSL shall use its reasonable endeavours to undertake Planned Maintenance and Emergency Maintenance outside of Business Hours.
Definitions
In this Agreement including all of the Parts, the following words shall have the following meanings:
“Acceptable Use Policy” means TGSL’s policy on acceptable use of the Services (as updated from time to time);
“Additional Software” means the information technology programs licensed to the Client under this Agreement as detailed in an Order Form which have been specifically written, adapted and/or developed for the Client by TGSL together with related documentation supplied to the Client;
“Agreement” means the agreement between the parties which is made up of (i) Section 1 Terms and Conditions for the Supply of Software, Services and Equipment, (ii) Section 2 the General Terms and Conditions, (iii) the Supplementary Terms, (iv) any Order Form(s) signed by the Client and confirmed as accepted by TGSL and (v) the Acceptable Use Policy (all as may be amended and updated from time to time and published on https://supportcentre.opengi.co.uk/);
“Approved API(s)” means an application programming interface which meets TGSL’s requirements and is approved by TGSL for use by the Client through the developer portal;
“Back Office” means the virtual or physical infrastructure appliance containing the TGSL Software components that form the core of the TGSL policy administration system;
“Business Day” means a day other than a Saturday, Sunday or bank holiday in England and Wales;
“Business Hours” means 09:00 to 17:30 on a Business Day;
“Client” means the person, firm, company or other legal entity that enters into an Agreement with TGSL for the supply of Software, Services and Equipment;
“Client Data” means all data, information and material including information relating to its Customers or potential Customers and Personal Data supplied by a Client and held on the Database;
“Cloud Environment” means TGSL’s hardware, network server(s) and data centres or those of a third party under lease or license to TGSL used to provide the Client with access to the Content webpages, Database, Services and Software;
“Computer Device” means one connected device (including desktop and laptop computers, thin client devices or smartphones/tablets as applicable) accessing or comprising of any of the Software installed by TGSL or the Client in accordance with TGSL’s standard installation procedures;
“Content” means all data, information, images, graphics and materials either supplied by the Client or specified by the Client, including free format text entered by the Client and Users on data entry fields, registered trademarks and unregistered service marks belonging to the Client and third parties, programs and plug-ins belonging to third parties, hyperlinks and other connections to third party services, systems and websites (including credit checking agencies, merchant services, third party enrichments, news feed and price suppliers and third party news pages);
“Core Hours” means the hours specified on the applicable Order Form which shall be either E Hosting Hours, Extended Hours or Business Hours;
“Customer” means the person or entity receiving services or products from the Client;
“Database” means the underlying datastore supplied either on the Software or on the Public Cloud Services that will contain the Client Data. The copyright in the datastore vests in the third party supplier of the datastore or TGSL (as applicable) and associated software and the copyright in the structure and format vests in TGSL;
“Data Transfer Services” means the transfer of data from the Client onto the Software, the Database or the Public Cloud Services as more particularly described on an Order Form;
“Demarcation Point” means the point at which the public internet connects to the TGSL firewalls;
“Documentation” means the operating manuals, online guides, user instructions, technical literature, scope, process definitions and procedures and other related materials TGSL supplies to the Client in any form under this Agreement for aiding the use of the Software and the Services, including any part or copy of them or in the course of providing the Support;
“Downtime” means an interruption in the availability of the relevant Service during the applicable hours for the Client;
“EDI Services” means the facility which enables the Client to transact electronic data interchange;
“E Hosting Hours” means 24 hours per day, 365 days per year;
“Emergency Maintenance” means urgent emergency unplanned maintenance such as to avoid an imminent threat or to resolve a service outage. Advance notification of such maintenance shall be provided to the Client by TGSL wherever possible;
“Extended Hours” means 08:00 to 20:00 Monday to Saturday excluding bank and public holidays;
“Fees” means all of the fees and charges payable under this Agreement by the Client including the Initial Licence Fee, the Recurring Licence Fee, the Service Fees and Policy in Force Fee;
“Fix(es)” means a correction which is issued to remedy a material failure of the Software or Services;
“Force Majeure Event” means any event which is beyond the reasonable control of either party whereby it is prevented from or delayed in the carrying on of its business including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, extreme weather conditions, flood, epidemic, pandemic, lock‐outs, strikes or other labour disputes (excluding those relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials;
“Incident” means any fault or error which has occurred in the Software or Services;
“Initial Licence Fee” means the licence fee paid on the commencement of the licence for Software and which is specified on an Order Form;
“Initial Period” means the minimum duration for a Service which is set out in the most up to date applicable Order Form relating to that Service;
“Intellectual Property Rights” means all industrial and intellectual property rights including without limitation patents, trademarks, know how, registered designs, unregistered design rights, database rights (including rights in the design or structure of any database), copyright, confidential know-how and applications for any of the foregoing together with the right to make such applications (including without limitation all such rights in any data, drawings, specifications, manuals, instructions, plans, designs and computer programs) together also with all information of a confidential nature;
“Licence Fee” means the Initial Licence Fees and the Recurring Licence Fees;
“Licensed Materials” means the Software, Database, Documentation, Updates, Upgrades and any other material supplied to the Client under this Agreement;
“Location” means the premises specified in the Order Form at which the Software and all copies and partial copies thereof are located and used;
“Maintenance Release” means any release of the Software or Services which corrects faults, adds functionality or otherwise amends or upgrades the Software or Services, but which does not constitute an Update or Upgrade;
“Maximum Number of Users” means the maximum number of Users permitted to use the Software as specified in the applicable Order Form;
“Monthly Minimum PIF” means the minimum number of deemed Policies in Force in the Back Office on the last day of each month as set out in the applicable Order Form;
“Monthly Minimum PIF Fee” means the amount calculated by multiplying the Monthly Minimum PIF by the PIF Rate;
“Order Form” means the document of that name which expressly incorporates the terms and conditions of this Agreement and through which the Client requests and TGSL agrees to supply products and services by affixing its signature (the first Order Form sets out the products and services that the Client has initially ordered, subsequent Order Forms may vary, add or delete services and products as agreed between the parties);
“PIF Rate” means the monthly charge for each Policy in Force as set out in an Order Form;
“Planned Maintenance” means scheduled maintenance and testing which is undertaken by TGSL and which is notified to the Client in advance;
“Policy(ies) in Force” or “PIF” means a primary insurance policy that is in force on the last day of each month but shall exclude any add-on or ancillary covers or products linked to or associated with that primary policy provided that each such add-on or ancillary cover has a cost to the policyholder of not more than 25% of the premium of the primary policy. Any policy which expires or is cancelled during a month shall not be considered “in force” at the end of that month;
“Policy(ies) in Force Fee” or “PIF Fee” means the Recurring Licence Fee charged to the Client for Policies in Force which shall be calculated by multiplying the PIF Rate by the TPIF.
“Private Cloud Services” means the service provisioned via TGSL’s private Cloud Environment to access and use the Database and Software;
“Professional Day” and “Professional Day Rate” means any weekday between the hours of 09:00 and 17:30 (with one hour for lunch) excluding Saturdays, Sundays and bank and public holidays in the jurisdiction in which the Services will be performed, and the “Professional Day Rate” shall be the rate charged by TGSL for a Professional Day;
“Professional Services” means implementation, consultancy, training, development or other services provided by TGSL in accordance with an Order Form and this Agreement;
“Public Cloud Services” means the service provided by TGSL which gives the Client access to the Software, the Database and Approved APIs via a public Cloud Environment;
“Recurring Licence Fees” means the fee payable annually, or as otherwise agreed, by the Client for a licence to use the Software or Services;
“Service Fees” means the fees to be paid by the Client to TGSL in relation to the provision of Services;
“Services” means Professional Services, Data Transfer Services, Private Cloud Services, Public Cloud Services, EDI Services, Support and Updates provided by TGSL under this Agreement;
“Software” means, where specified on an Order Form, either (i) the information technology programs licensed to the Client under this Agreement which shall incorporate any Updates, Upgrades and Maintenance Releases, (ii) any Additional Software that may be developed as part of the Professional Services or (iii) the software program developed by TGSL which the Client may access and use as part of the Public Cloud Services, and in all cases excludes Third Party Software;
“Supplementary Terms” means the terms and conditions which apply to additional services and products purchased by the Client and which can be found at https://opengi.co.uk/supplementary-sales-and-product-terms using the password On8)mRkZU2fIqH#;
“Support” means the provision of support and maintenance services by TGSL;
“Support Centre” means the helpdesk and support centre run and operated by TGSL;
“Support Hours” means 09:00 to 17:30 Monday to Friday excluding bank and public holidays;
“Term” means the period of this Agreement as calculated in accordance with clause 1.1 of Section 2 of the General Terms and Conditions;
“Territory” means the United Kingdom and the Republic of Ireland;
“TGSL” means Transactor Global Solutions Limited (company registration no. 04655396) of Buckholt Drive, Warndon, Worcester, WR4 9SR, acting by itself or through one of its Associated Companies appointed to act as its subcontractor;
“Third Party Software” means software, hosting and services provided by a third party which is used in the Public Cloud Services;
“TPIF” means the total number of Policies in Force in the Back Office on the last day of the relevant month;
“Update” means the periodic supply of third party insurance rate data and guides by TGSL to the Client for use with the Software;
“Upgrade” means any new version of the Software or the Services that TGSL makes available to the Client as part of its Services and which becomes part of the Software on acceptance or installation, whichever is the earlier;
“User” means an employee or agent of the Client who is authorised by the Client to access the Licensed Materials for the sole purpose of the Client’s insurance broking business;
“Workaround” means a circumvention or means of bypassing, masking or otherwise avoiding an error which does not constitute a Fix.
The parties have agreed that the Terms and Conditions of Business for the Supply of Software and Services (Section 1) and the General Terms and Conditions (Section 2) shall apply to the supply of any Services ordered by the Client and detailed in an Order Form. All Order Form(s) are expressly made subject to the Terms and Conditions of Business for the Supply of Software and Services and the General Terms and Conditions.