Support Agreement

tecvia.co.uk

This Support Agreement sets out the terms on which Tecvia Limited provides support and maintenance services for Microsoft Dynamics 365 Business Central and related software. The Customer’s attention is particularly drawn to clause 12 (Limits of liability).

1 Interpretation

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions

Affiliate: any subsidiary or holding company of a party, and any subsidiary of a holding company of that party.
Charges: the charges payable for the Services under this agreement, including the charges for the Standard Support Service set out in clause 5 (which also include the Updating Service).
Confidential Information: has the meaning given in clause 9.
Contract Year: any 12-month period ending on any anniversary of the date of this agreement.
Critical Fault: a reproducible fault which substantially hinders or prevents the Customer from using a material part of the functionality of the Software.
Deliverables: any Documentation, Software, know-how or other works created or supplied by the Supplier (alone or jointly) in the course of providing the Services.
Documentation: the documents provided by the Supplier for the Software, in printed or machine-readable form, including technical documentation, program specifications and operations manuals.
Go Live Date: the date agreed by the Customer and Supplier for the commencement of support and maintenance of the Software.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights.
Maintenance Release: a release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Manager: the person appointed by the Customer to fulfil the role described in clause 6.3.
Modification: any Maintenance Release or New Version acquired by the Customer.
New Version: a new version of the Software that is publicly marketed and offered for purchase by the Supplier in the ordinary course of its business, containing differences from previous versions significant enough to be generally accepted in the marketplace as a new product.
Non-Critical Fault: any reproducible fault in the Software other than a Critical Fault.
Services: the Standard Support Service and the Updating Service, as the context requires.
Software: the software consultancy service provided by the Supplier to the Customer, including Microsoft Dynamics 365 Business Central and any related applications.
Standard Support Hours: 8.00am to 6.00pm, Monday to Friday, except bank holidays in England.
Standard Support Service: the support service described in clause 3, provided by the Supplier under clauses 3.1 and 3.2.
Support Staff: the individuals who perform the Supplier’s obligations under this agreement.
Supported Software: has the meaning set out in clause 2.1.
Updating Service: the service supplied by the Supplier under clauses 3.1 and 3.3.

1.2 Interpretation

The headings in this agreement do not affect its interpretation. References to clauses are to clauses of this agreement, unless the context requires otherwise.
Words in the singular include the plural and vice versa. A reference to one gender includes a reference to the other genders.
A reference to any party includes that party’s personal representatives, successors and permitted assigns.
A reference to a statute or statutory provision is a reference to it as in force at the date of this agreement, and includes all subordinate legislation made under it as at that date.
Any words following the terms including, include, in particular, for example or any similar expression are illustrative and do not limit the words, description, definition, phrase or term preceding those terms.
A person includes a natural person, corporate or unincorporated body, whether or not it has separate legal personality.

2 Supported Software

2.1 The Supported Software (the Supported Software) is:

Microsoft Dynamics 365 Business Central;
any third-party application installed by the Supplier;
any Modification carried out by, or acquired by the Customer during the course of, the Service; and
any other software agreed between the parties.

2.2 If a new third-party application or Modification is introduced to meet new requirements, the Supplier will support it as part of the Supported Software. The Supplier may apply additional Charges for this, and will notify the Customer of any additional Charges in advance.

2.3 In relation to Maintenance Releases:

as part of the Updating Service, the Supplier will make Maintenance Releases available to the Customer without charge, working with Microsoft and other relevant third parties as needed; and
if the Customer does not arrange to install a Maintenance Release within one month of the Supplier notifying the Customer that it is available, the Supplier may terminate this agreement by giving one month’s written notice.

2.4 If the Supplier releases a New Version and the Customer chooses not to acquire and install it, that decision does not give rise to any right to terminate this agreement, and does not adversely affect the Services or the Supplier’s performance of its obligations. However, if the Customer has not acquired and installed a New Version within 12 months of the Supplier notifying the Customer that it is available, the Supplier may terminate this agreement by giving one month’s written notice at any time after that period expires.

3 The Services

3.1 The Supplier will supply, and the Customer will take and pay for, the Standard Support Service and the Updating Service.

3.2 The Standard Support Service is provided during Standard Support Hours and includes:

a telephone help desk providing technical support to users of the Supported Software, including general enquiries and assistance with acceptance testing; and
remote diagnosis and, where possible, correction of faults using the Supplier’s support tools, including correcting errors, bugs and failures of the Software to meet any warranty or term of this agreement, and delivering, installing and handing over the resulting Maintenance Release for testing.

Calls to the help desk are prioritised and dealt with in line with the following service levels:

Priority	Description	First response target	Interim resolution target	Permanent resolution target
Critical	Complete system failure. The Customer is unable to operate.	1 hour	1 working day	1 month
Urgent	Multiple users unable to process. Client service impact within 24 hours.	2 hours	2 working days	1½ months
Important	A single user is unable to complete a required task.	4 hours	3 working days	2 months
Standard	A question about system operation.	1 working day	5 working days	3 months

3.3 If additional on-site support is required in any month, the Supplier may provide it at its option, at the rates set out in clause 5.

3.4 Where a Non-Critical Fault is due to be corrected in a forthcoming Maintenance Release, the Supplier may decline to provide assistance with that fault for a reasonable period before the release is issued.

3.5 As part of the Updating Service, the Supplier will:

issue Modifications of the Software, working with Microsoft and other relevant third parties, in whatever form it considers appropriate (a local fix, a patch, or a temporary workaround), at its discretion;
supply the Customer with all revisions to the Documentation necessary to reflect any Modification the Customer has acquired; and
include the cost of the Updating Service within the Charges for the Standard Support Service, except for any sum payable for a New Version.

Once a Modification is installed, the Customer must return all copies of the Software or part of the Software it supersedes.

3.6 The Supplier may, on prior notice to the Customer, make changes to the Services, provided the changes do not have a material adverse effect on the Customer’s business operations.

3.7 The Supplier has no obligation to provide the Services where a fault arises from:

misuse, incorrect use of, or damage to the Software, including failure or fluctuation of electrical power (other than caused by the Supplier);
failure to maintain the environmental conditions the Software needs;
use of the Software with equipment or software not provided or designated by the Supplier, or any fault in that equipment or software;
relocation or installation of the Software by anyone other than the Supplier or someone acting on the Supplier’s instructions;
any breach of the Customer’s obligations under this agreement, or having the Software maintained by a third party;
any Modification not authorised by the Supplier; or
operator error.

4 Support Staff

4.1 The Supplier will provide sufficient Support Staff to fulfil its obligations under this agreement. Support Staff will be suitably trained and experienced in supporting and maintaining the Supported Software.

4.2 If a member of Support Staff is unavailable for any reason, the Supplier will supply a replacement who:

is appropriately trained and competent to fulfil the role; and
has completed a suitable period of familiarisation with the Services to perform the functions of the person they are replacing.

5 Charges

5.1 Charges for the Standard Support Service, including the Updating Service, are:

£20 per user per month for each Dynamics 365 Business Central Premium or Essentials user;
£3 per user per month for each Dynamics 365 Business Central Team Member user; and
subject to a minimum monthly charge of £200. Where the Customer’s user numbers do not reach this value, the minimum charge applies until the per-user rates exceed it.

5.2 On-site support is charged at the Supplier’s standard time and materials rate then in effect, including any expenses incurred to provide it.

5.3 Additional Charges may apply for new Modifications or the implementation of third-party applications. The Supplier will inform the Customer of any additional Charges in advance.

5.4 The Customer will pay the Charges monthly, in arrears, within the due date shown on the Supplier’s invoice.

5.5 Any additional services, including extra support services, are charged separately. These are agreed in writing between the parties before the Supplier performs or supplies them, and invoiced following the Supplier’s acceptance of the Customer’s written order.

5.6 The Customer will pay all costs and expenses the Supplier incurs (at its prevailing rates) for work carried out in connection with a fault not covered by this agreement.

5.7 The Customer will reimburse reasonable travel and subsistence expenses the Supplier incurs solely for providing on-site support, provided the request is accompanied by a proper invoice and appropriate receipts.

5.8 If the Customer fails to pay an amount due by the payment date, the Customer will pay interest on the overdue amount at 1% a year above the Bank of England’s base rate from time to time. Interest accrues daily from the due date until payment, whether before or after judgment.

5.9 All amounts payable under this agreement are exclusive of VAT or other applicable sales tax, which is payable at the prevailing rate.

5.10 All amounts due under this agreement are payable in full, without any set-off, counterclaim, deduction or withholding, other than any deduction or withholding of tax required by law.

5.11 The Supplier may, on prior notice to the Customer, change the Charges, provided the change does not have a material adverse effect on the Customer’s business operations.

6 The Customer’s Responsibilities

6.1 The Customer will give the Supplier, Support Staff and other authorised persons full, safe and uninterrupted access, including remote access, to the Customer’s premises, systems, facilities and the Software as reasonably required to perform the Services. Except in an emergency or agreed out-of-hours downtime, this access will fall within Standard Support Hours. Where Services are performed at the Customer’s premises, the Customer will provide adequate working space and facilities for the Support Staff and take reasonable care of their health and safety.

6.2 The Customer will maintain appropriate environmental conditions for the Supported Software and take reasonable steps to ensure its employees operate it properly.

6.3 The Customer will nominate a Manager to liaise with, and respond to queries from, the Supplier.

6.4 The Customer will:

co-operate with the Supplier in performing the Services, including with fault diagnosis;
report faults to the Supplier promptly; and
keep full backup copies of its data.

6.5 The Customer will indemnify the Supplier against losses, damages, costs (including legal fees) and expenses the Supplier incurs or has awarded against it as a result of the Customer’s breach of this agreement, or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents.

6.6 Except as expressly stated otherwise, this agreement does not transfer ownership of, or grant any licence (implied or otherwise) in, any Intellectual Property Rights in any non-personal data.

7 Non-Solicitation

For the duration of this agreement and after termination, the Customer will not directly or indirectly induce, or attempt to induce, any Supplier employee engaged in providing, receiving, reviewing or managing the Services to leave the Supplier’s employment.

8 Risk and Title

Risk in, and title to, any media bearing Software, Documentation or other information the Supplier supplies to the Customer passes to the Customer on acceptance.

9 Confidentiality and Publicity

9.1 Each party will keep confidential, during this agreement and afterwards, any information of a confidential nature (including trade secrets and commercially valuable information) it learns from the other party relating to that party or its Affiliates (Confidential Information), and will not use it for its own purposes or disclose it to a third party (other than professional advisors, or as required by law or a legal or regulatory authority) without the other party’s prior written consent. This does not apply to information that is public knowledge, was already known to the receiving party, or that the receiving party lawfully receives from a third party. Each party will use reasonable endeavours to prevent unauthorised disclosure of such information.

9.2 Each party will notify the other if any of its staff involved in the Services becomes aware of unauthorised disclosure of Confidential Information, and will give reasonable assistance, at the other party’s cost, with any enforcement action it chooses to bring.

9.3 The Customer will not disclose the terms of this agreement, other than to its legal advisors, without the Supplier’s prior written consent.

9.4 This clause 9 survives termination of this agreement.

10 Data Protection

The parties will comply with their respective obligations under applicable data protection legislation.

11 The Supplier’s Guarantees

All repairs the Supplier carries out are guaranteed for 30 days. This guarantee does not affect the Customer’s statutory rights.

12 Limits of Liability

12.1 Except as set out in clause 12.2, the Supplier is not liable, in contract, tort (including negligence) or otherwise, for any of the following losses suffered by the Customer, whether direct or indirect, immediate or consequential:

special damage, even where the Supplier was aware such damage could arise;
loss of profits;
loss of anticipated savings;
loss of business opportunity;
loss of goodwill; and
loss of, or damage to (including corruption of), data, provided this does not prevent claims for loss of or damage to the Customer’s tangible property, or any other direct financial loss not excluded by categories (a) to (f) above.

12.2 Nothing in clause 12.1 excludes or limits the Supplier’s liability for:

death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
fraud or fraudulent misrepresentation;
breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
any other liability that cannot be excluded by law.

12.3 The Customer agrees that it has not relied on any representation, written or oral, other than those expressly set out in this agreement, and that its remedies (if any) for any such representation are limited to the express terms of this agreement.

12.4 The Supplier’s total liability, in contract, tort (including negligence) or otherwise, in connection with this agreement, will not exceed 100% of the Charges payable by the Customer in the Contract Year in which the liability arises.

12.5 The Customer acknowledges that it is exclusively responsible for reviewing new Modifications, training its staff and its Affiliates’ staff in the proper use of the Software, keeping regular backup copies of its data, and the selection and use of any other programs, equipment or services used with the Software. The Customer also acknowledges that the level of the Charges reflects the allocation of risk between the parties set out in this agreement, and that it is better placed than the Supplier to assess and manage its own risk.

12.6 Dates the Supplier gives for delivering Modifications or Services are estimates only. The Supplier is not liable for loss or damage arising from any delay beyond these estimated dates.

12.7 References to the Supplier in this clause 12 include, for the purposes of this clause only, its employees, subcontractors and suppliers, all of whom may rely on the exclusions and limitations set out in this clause.

13 Assignment and Subcontracting

13.1 The Customer will not assign, novate, charge, subcontract or otherwise deal with any of its rights or obligations under this agreement without the Supplier’s prior written consent, which will not be unreasonably withheld or delayed.

13.2 The Supplier may assign, novate, charge, subcontract or otherwise deal with any of its rights or obligations under this agreement at any time, on written notice to the Customer.

13.3 Each party confirms it acts on its own behalf, not for the benefit of any other person.

13.4 A party assigning its rights under this agreement may disclose to a proposed assignee any information reasonably necessary for the assignment, provided it first notifies the other party of the proposed assignee’s identity.

14 Duration

The Supplier will begin supplying the Services on the agreed Go Live Date. Subject to termination under this agreement, the Services continue for a fixed term of 24 months. After that, the agreement continues on an annual basis until either party gives the other a minimum of 60 days’ written notice to end it at the end of the then-current term.

15 Termination

15.1 The Supplier may terminate this agreement, or the Support Services, with immediate effect by written notice if the Customer:

fails to pay any amount due under this agreement and remains in default for 14 days or more after being notified in writing;
commits a material breach of this agreement (other than a payment failure) and, if the breach can be fixed, fails to fix it within 90 days of being notified in writing;
repeatedly breaches the terms of this agreement in a way that reasonably suggests it does not intend, or is not able, to give effect to those terms; or
suspends or ceases, or threatens to suspend or cease, a substantial part of its business.

15.2 For the purposes of clause 15.1(b), a material breach is one that is serious enough to have a significant effect on the benefit the terminating party would otherwise get from a substantial part of this agreement over its term. Whether a breach is material does not depend on whether it happened by accident, mishap, mistake or misunderstanding.

15.3 Either party may otherwise terminate this agreement in line with clause 14.

16 Effect of Termination

16.1 Other than as set out in this agreement, neither party has any further obligation to the other after termination.

16.2 Any provision intended to survive termination, including clauses 1, 9, 10 and 12, remains in full force and effect.

16.3 Termination does not affect either party’s accrued rights, remedies, obligations or liabilities as at the date of termination.

16.4 If a party is required by law, regulation or a government or regulatory body to retain documents or materials containing the other party’s Confidential Information, it will notify the other party in writing, giving details of what it must retain.

16.5 On termination, the Customer’s right to receive the Services stops immediately, and each party will, as soon as reasonably practicable:

return, destroy or permanently delete (as the other party directs in writing) any documents or data containing the other party’s Confidential Information, and provide written evidence of this within 7 days if requested, except that the Customer may retain copies of Supplier Confidential Information incorporated into the Software, and either party may keep one copy for audit purposes, subject to clause 9; and
return the other party’s equipment and materials, failing which the other party may enter the relevant premises and take possession of them. Until returned or repossessed, the party in possession is responsible for their safekeeping.

Electronic data is treated as deleted, for the purposes of this clause, once it has been put beyond use by the deleting party.

16.6 On termination, the Customer will immediately pay any outstanding invoices and interest due. The Supplier will invoice any Services already supplied but not yet invoiced, and the Customer will pay these on receipt, unless a genuine dispute has been raised.

17 Waiver

No failure or delay by a party to exercise any right or remedy under this agreement or by law amounts to a waiver of that or any other right or remedy, and does not prevent or restrict its further exercise. No single or partial exercise of a right or remedy prevents or restricts its further exercise.

18 Remedies

Except as expressly stated in this agreement, the rights and remedies it provides are in addition to, not instead of, any rights or remedies provided by law.

19 Entire Agreement

19.1 This agreement constitutes the entire agreement between the parties, and supersedes all previous agreements, promises, assurances, warranties, representations and understandings between them relating to its subject matter, whether written or oral.

19.2 Each party confirms that it has not relied on, and has no remedy in respect of, any statement, representation, assurance or warranty not set out in this agreement.

19.3 Each party agrees it has no claim for innocent or negligent misrepresentation, or negligent misstatement, based on any statement in this agreement.

20 Variation

No variation of this agreement is effective unless it is in writing and signed by both parties or their authorised representatives.

21 Severance

21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it is deemed deleted, without affecting the validity and enforceability of the rest of the agreement.

21.2 If a provision is deleted under clause 21.1, the parties will negotiate in good faith to agree a replacement that achieves, as closely as possible, the intended commercial result of the original.

22 Counterparts

This agreement may be executed in any number of counterparts, each of which is a duplicate original, and all of which together constitute one agreement.

23 Third-Party Rights

No one other than a party to this agreement has any right to enforce any of its terms.

24 Force Majeure

24.1 Neither party is in breach of this agreement, nor liable for delay or failure to perform its obligations, if this results from events, circumstances or causes beyond its reasonable control. The affected party is entitled to a reasonable extension of time to perform those obligations. If the delay or non-performance continues for 12 weeks, the other party may terminate this agreement by giving 30 days’ written notice.

24.2 If the agreement is terminated under clause 24.1, the Supplier will refund all sums the Customer has paid under this agreement, except that the Supplier is entitled to payment on a quantum meruit basis for work done before termination, provided it takes reasonable steps to mitigate the amount due.

25 Notices

25.1 A notice given under or in connection with this agreement must be in writing and sent by email.

25.2 This clause does not apply to the service of documents in legal proceedings, arbitration, or any other formal dispute resolution process.

26 Dispute Resolution

26.1 The parties intend to settle disagreements about performance, procedure or management amicably, by negotiation, following the process in this clause before either party serves notice to terminate.

26.2 If a disagreement arises:

the Manager and the Supplier will meet to try to resolve it. If they do not meet within 14 days of either party convening a meeting, or cannot resolve it within 14 days of first meeting, then
either party may refer the matter to a director of the Customer and a director of the Supplier for immediate resolution.

26.3 If no agreement is reached within 14 days of referral to a director, the dispute resolution process is deemed exhausted, and each party may pursue its rights under this agreement without further reference to this process.

26.4 This clause does not prevent either party from seeking injunctive relief for an actual or threatened breach of confidentiality, or infringement of its Intellectual Property Rights.

27 Governing Law

This agreement, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims), is governed by and construed in accordance with the law of England and Wales.

28 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement, including non-contractual disputes or claims.

Support Agreement