FRESH MILK SOFTWARE SERVICE TERMS

1. Definitions & Interpretation
1.1 The following definitions apply in this Agreement:
“Acceptable Use Policy” the policy set out in Schedule 3 to these Service Terms.
“Agreement” the Front Sheet, these Service Terms together with any applicable Order Form, Statement of Work and/or Schedules;
“Applicable Laws” all applicable laws and regulations relating to the rights and obligations of each party under this Agreement as they may be amended, re-enacted or replaced from time to time, including where applicable any guidance notes and codes of practice issued by the European Commission and applicable national regulators;
“Authorized User” any employees, agents, independent contractors or consultants of the Customer or of a Customer Affiliate and are Authorized or otherwise designated or permitted by Customer to access and use the Services pursuant to the Agreement.
“Business Day” any calendar day which is not a Saturday or Sunday on which the banks in the City of London, England, are open for business and only from 9:00 A.M. to 5:00 P.M. London local time.
“Confidential Information” any information (whether before, on or after the date of the Agreement) obtained from the other party if it is either designated as confidential or a reasonable person would reasonably consider it to be confidential, including the Software. It does not include information which the recipient can show to the other party's satisfaction was independently developed or discovered by it without access to the other party's Confidential Information, or was legitimately in the public domain or received from a third party (in each case) other than by breach of any confidentiality obligation.
“Control” the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares or interests of an entity.
“Customer Affiliates” any entity that from time to time, directly or indirectly, Controls, is Controlled by, or is under common Control with the Customer.
“Customer Contact” the person identified as such in the applicable Order Form.
“Customer Data” any text, images, data or other content transmitted by Customer or Authorized Users to Fresh Milk Software Ltd in connection to Customer’s and/or Authorized Users’ use of the Services. Customer Data does not include: (i) data structures for Customer Data developed by Fresh Milk Software Ltd or data analytics not referenceable to a specific named Authorized User developed by Fresh Milk Software Ltd; or (ii) Customer Relationship Data.
“Customer Interface” the web-based interface provided by Fresh Milk Software Ltd by which Customer and Authorized Users may access the Services.
"Customer Relationship Data" means standard profile information about a Customer held by Fresh Milk Software Ltd (such as the Customer’s name, contact information, office location and payment information), which is used by Fresh Milk Software Ltd to serve the Customer relationship.
"Data Controller", "Data Processor", "Data Subject" and "Processing" have the meanings given in the Data Protection Legislation and, in relation to the latter, "Process" and "Processed" shall be construed accordingly.
"Data Protection Legislation" the Data Protection Act 1998, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK; and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law and all applicable laws and regulations relating to the processing of Personal Data or Sensitive Personal Data and privacy and as amended, consolidated or superseded by similar or equivalent legislation, including where applicable the guidance and codes of practice issued by the Information Commissioner or any other supervisory authority, and the equivalent of any of the foregoing in any relevant jurisdiction
“Effective Date” for this Agreement, the date of signature of this Agreement and for each Order Form or Statement of Work, the date of signature of such Order Form or Statement of Work.
“Enhancement” any correction, modification, bug fix, customization, revision, enhancement, improvement, update, upgrade, new release or other change that is released generally by Fresh Milk Software Ltd, in its sole and absolute discretion, for similarly situated customers of the Services.
“Equipment” the Customer’s and/or Authorized Users' computer hardware and associated peripherals on which the Services are accessed;
“Fees” the amounts payable by the Customer as stated in this Agreement, Order Form or Statement of Work (as applicable);
“Go Live Date” the date on which Fresh Milk Software Ltd notifies Customer that the Services are ready for use by Customer and that they are in fact usable by Customer.
“Initial License Term” the period of time stated in the Order Form.
“Intellectual Property Rights” all rights of a person or business entity in, to, or arising out of: (i) any U.K., international or foreign patent or any application therefor and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, design rights whether registered or unregistered, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, License or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
“Maximum Authorized Users” the maximum number of Authorized Users that the parties have agreed will be entitled to use the Software in any one month;
“Order Form” a document referencing these Service Terms and setting out the commercial terms and any special terms upon which the Services are being provided to the Customer, in the form set out at Schedule 4.
"Personal Data" those elements of the Customer Data which constitute 'personal data' (as defined in the Data Protection Legislation).
“Product Description” the functions and features of the Fresh Milk Software Ltd Service and Software as set out in Schedule 1 to these Service Terms.
“Professional Services” any services to be provided by Fresh Milk Software Ltd pursuant to Clause 13 and as more particularly set out in the applicable Statement of Work.
“Fresh Milk Software Ltd Contact” the person identified as such in the applicable Order Form.
“Fresh Milk Software Ltd Service” Fresh Milk Software Ltd’s talent matching and collaboration service.
“Fresh Milk Software Ltd System” the Software and the Services provided by Fresh Milk Software Ltd through the Customer Interface as well as related know how.
“Fresh Milk Software Ltd Technology” the Software and any know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, user manuals, online documentation, products or other technology and materials of any kind, or any Enhancement thereto, used by Fresh Milk Software Ltd in connection with the performance of the Services or made available by Fresh Milk Software Ltd to Customer, any Authorized User or any third party.
"SCCs" the Standard Contractual Clauses for the transfer of personal data to data processors established in third countries adopted by the European Commission decision of 5 February 2010 and published under document number C(2010) 593 2010/87/EU.
“Service Level Agreement” the schedule of specifications for the performance and availability of the Services as set out in Schedule 2 to these Service Terms.
“Software” the software applications used by Fresh Milk Software Ltd to provide the Services with the features set forth in the Product Description and if agreed by the parties, any Enhancements thereto made available by Fresh Milk Software Ltd to Customer and Authorized Users from time to time in accordance with this Agreement.
“Statement of Work” a document setting out Professional Services agreed pursuant to Clause 13 in the form set out at Schedule 5.
“Term” the Initial Term and any applicable Renewal Terms, as set forth in Clause 9.1.
"Third Countries" countries which: (i) are outside the European Union or the European Economic Area; and (ii) have not been granted an adequacy decision by the European Commission under Article 25(6) of Directive 95/46/EC or Article 45 of Regulation 2016/679.
“Use” accessing the Software and Services using the Equipment owned or operated by the Customer and using the Software and/or Services for the Purpose in accordance with the Documentation and any other materials or instructions provided by Fresh Milk Software Ltd.
“User Identification” the unique user identification issued or otherwise assigned to each Authorized User for access to and use of the Services through the Customer Interface.
1.2 The following rules of interpretation apply in this Agreement:
1.2.1 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement, Order and/or Statement of Work.
1.2.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.3 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.2.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.2.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.2.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.2.7 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time.
1.2.8 A reference to writing or written includes email unless email is expressly excluded.
1.2.9 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.2.10 A reference to this Agreement or to any other agreement or document referred to in this Agreement is a reference to this Agreement or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of this Agreement) from time to time.
1.2.11 References to Clauses and schedules are to the Clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.2.12 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.13 In the event of any conflict between these Services Terms and the Schedules, the Schedules shall prevail.

2. The Services & Software

2.1 Services. Subject to the terms and conditions of the Agreement, including payment of the Fees in accordance with Clause 6, Fresh Milk Software Ltd will make the Services available to Customer and Authorized Users during the Term. In consideration for payment of the Fees by the Customer to Fresh Milk Software Ltd in accordance with Clause 6, Fresh Milk Software Ltd hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable, revocable License to Use, and for the Authorized Users to Use, the Services and the Software for the Purpose. Fresh Milk Software Ltd may delegate the performance of certain portions of the Services to third parties provided Fresh Milk Software Ltd remains primarily responsible to Customer for the delivery and performance of the Services.
2.2 Restrictions on Use of Services & Software. Customer agrees not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Services in a manner that sends more request messages to the Fresh Milk Software Ltd servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. Customer agrees not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. In addition, the Customer shall not: (i) except as expressly permitted by law which is incapable of exclusion by agreement between the parties or as expressly agreed in the applicable Order Form, attempt to sub-License, transfer, loan, copy, duplicate, modify, adapt, merge, translate, reverse engineer, decompile or create derivative works based on the whole or any part of the Services or the Software or reproduce or deal in the Services or the Software or any part thereof in any way; (ii) provide or otherwise make the Services or the Software available in whole or in part to any third parties (including contractors or agencies working on the Customer's behalf), except with Fresh Milk Software Ltd’s prior written consent and the third party entering into any confidentiality undertaking or agreement provided by Fresh Milk Software Ltd; (iii) access, develop, supply or market all or any part of the Services or the Software, or assist any third party to the same, in order to build a product or service which replicates, competes with or is substantially similar to the Services or the Software; (iv) remove Fresh Milk Software Ltd’s trademark, copyright notice or any other proprietary notice from the Services; (v) attempt to undertake any security testing of the Services without the prior written consent of Fresh Milk Software Ltd; (vi) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (vii) take any action that imposes, or may impose, determined in Fresh Milk Software Ltd’s sole discretion an unreasonable or disproportionately large load on Fresh Milk Software Ltd’s infrastructure; (viii) upload invalid data, viruses, worms, or other software agents through the Services; (ix) impersonate another person or otherwise misrepresent Customer’s affiliation with a person or entity, conduct fraud, hide or attempt to hide Customer’s (or an Authorized User’s) identity; (x) interfere with the proper working of the Services; or (xi) bypass the measures that Fresh Milk Software Ltd may use to prevent or restrict access to the Services.
2.3 Non-exclusivity. Customer acknowledges that the rights granted to it under the Agreement are non-exclusive, and that, without limiting the foregoing, nothing in the Agreement will be interpreted or construed to prohibit or in any way restrict Fresh Milk Software Ltd’s right to (a) license, sell or otherwise make available the Fresh Milk Software Ltd Technology or Fresh Milk Software Ltd System to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
2.4 Suspension of Services. In the event Customer or any of its Authorized Users violate any of the terms set forth in Clauses 2.2, 4 or 7.2 of these Service Terms, in addition to any other remedies available at law or in equity, Fresh Milk Software Ltd will have the right, in its sole discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Services to the extent necessary to prevent the violation until such breach is cured.
2.5 Software. The Software shall be provided as set forth in the initial Order Form attached at Schedule 7, based on the template Order Form. The Software shall be commissioned as set out in the initial Order Form by the Customer requesting the provision of the next phase of Software. Fresh Milk Software Ltd shall create a draft Order Form for the next phase of Software and this shall only become binding once signed by an authorized representative of both Parties.
2.6 Software Enhancements. Fresh Milk Software Ltd shall not be obligated to provide Enhancements unless agreed in an Order Form and additional Fees shall be payable in respect of the same.
2.7 Additional Services. As part of this Agreement, the Parties may from time-to-time agree that Fresh Milk Software Ltd shall provide professional services under Statements of Work (which, once agreed, shall form part of this Agreement). The scope of the Professional Services to be performed, the Fees for the Professional Services and the time frames for performing, will be set forth in the relevant Statement of Work. All such pricing is exclusive of reimbursable expenses and all taxes applicable to the Professional Services, which will all be billed to Customer as separate items. If Customer has any reasonable rules concerning its expense reimbursement process, Fresh Milk Software Ltd shall conform to them if Customer has given Fresh Milk Software Ltd actual notice of them and to the extent they are reasonable as applied to Fresh Milk Software Ltd. Any Intellectual Property Rights in any deliverables or work product of Fresh Milk Software Ltd and its subcontractors developed as part of any Professional Services shall, unless expressly provided otherwise in the Statement of Work, be the sole and exclusive property of Fresh Milk Software Ltd.

3. Intellectual Property Rights

3.1 Reservation of Rights. Fresh Milk Software Ltd shall at all times retain ownership of all Intellectual Property Rights in the Services, the Software, and all subsequent copies of and Enhancements to the Software.
3.2 Know How. Subject to Clause 13.1, Customer hereby acknowledges that Fresh Milk Software Ltd may use any knowledge or knowhow gained from working with Customer under this Agreement (including ideas provided by Customer) including to enhance, update, upgrade, correct add to or amend the Services and/or the Software.
3.3 Usage of IP. Neither Party shall make use of the other Party's name, logos and/or trademarks without the other Party’s prior written consent, such consent not to be unreasonably delayed. Customer hereby grants Fresh Milk Software Ltd a License to use Customer’s Intellectual Property only to the extent necessary to perform the Services and Fresh Milk Software Ltd shall use the same always in accordance with Customer’s written instructions.

4. Access to the Services

4.1 Equipment, Services and Facilities. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users' access to and use of the Services through the Customer Interface, including, without limitation, all Equipment, other computer hardware and software, network system, communication service and Internet access. Customer shall be responsible for its own network, its connectivity to the public networks such as the internet, and security settings and features, such as its firewalls and firewall settings, virtual private networks, and other security measures, and the requirements thereof for interacting with Fresh Milk Software Ltd’s network for the proper use of the Services.
4.2 Password. Customer will issue a User Identification to enable each Authorized User to access and use the Services through the Customer Interface. Customer is solely responsible for tracking the User Identifications to specific Authorized Users and for ensuring the security and confidentiality of all User Identifications. Customer acknowledges that it is fully responsible for all liabilities incurred through the use of any User Identification and that any transaction under a User Identification will be deemed to have been performed by Customer. Customer will immediately notify Fresh Milk Software Ltd of any unauthorized use of any User Identification or any other breach of security known to it. Use of any User Identification other than as provided in the Agreement will be considered a breach of the Agreement by Customer. In the event that an Authorized User leaves the employment or engagement of Customer or where the employment or engagement of an Authorized User is transferred such that Customer does not intend for them to have access to the Services, Customer shall disable such individual’s User Identifications and shall not issue any new User Identifications to such individual.
4.3 Authorized Users. In relation to the Authorized Users, Customer undertakes that: Order Form: (i) it will not allow or suffer any account to access the Services to be used by more than one individual Authorized User unless it has been reassigned in its entirety to another individual Authorized User, in which case the prior Authorized User shall no longer have any right to access or use the Services and/or the Software; (ii) it shall permit Fresh Milk Software Ltd to audit the Customer in order to establish the Customer's compliance with this Clause 4. Such audit may be conducted no more than once per quarter, at Fresh Milk Software Ltd's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business; (iii) if any of the audits referred to in (ii) reveal that any User Identification has been provided to any individual who is not an Authorized User, then without prejudice to Fresh Milk Software Ltd's other rights, Customer shall promptly disable such User Identifications and shall not issue any new User Identifications to any such individual; (iv) if any of the audits referred to in (ii) reveal that Customer has underpaid Fees to Fresh Milk Software Ltd, then without prejudice to Fresh Milk Software Ltd’s other rights, Customer shall pay to Fresh Milk Software Ltd an amount equal to such underpayment as calculated in accordance with the prices set out in the applicable Order Form within fourteen (14) days of the date of the relevant audit; and (v) it is responsible for ensuring that Authorized Users are aware of and comply with the terms of this Agreement, the Acceptable Use Policy and any other applicable terms and conditions.
4.4 Hours of Operation; Scope of Services. Fresh Milk Software Ltd reserves the right at any time with reasonable advance notice to Customer to temporarily change the Services' hours of operation or to limit Customer's and Authorized Users' access to and use of the Services in order to perform repairs, make modifications, or to do so without advance notice as a result of circumstances beyond Fresh Milk Software Ltd's reasonable control, in accordance with the Service Level Agreement. Fresh Milk Software Ltd may alter or modify all or part of the Services from time to time, including without limitation, the addition or withdrawal of features, products, services, software or changes in instructions, and changes to the Customer Interface.
4.5 Customer Indemnity. Customer shall defend, indemnify and hold harmless Fresh Milk Software Ltd and its affiliates, and their employees, contractors, agents, officers and directors against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's or the Authorized Users' use of the Services in breach of this Agreement or any reasonable instructions from Fresh Milk Software Ltd.

5. Right to Monitor

Subject to full compliance with the confidentiality obligations of Clause 13.1 below and all Applicable Laws, Fresh Milk Software Ltd will have the right to review and monitor all use of the Services to ensure compliance with all of the terms of the Agreement.

6. Payment

6.1 Fees. Fresh Milk Software Ltd shall invoice Customer for the Fees in accordance with the applicable Order Form and Customer shall on receipt of each invoice pay Fresh Milk Software Ltd such invoiced Fees within 30 days of the date of such invoice. Invoices shall be billed and paid in the currency stipulated in the Order Form. Invoices shall be paid by wire transfer to Fresh Milk Software Ltd’s accounts in accordance with wiring instructions provided by Fresh Milk Software Ltd from time to time. Customer shall advise Fresh Milk Software Ltd in writing of any restraints, such as invoice timing, formal requirements, or other procedures relating to Customer’s payment processes, which would affect payment or the time of presentation of Fresh Milk Software Ltd’s invoices. Each invoice shall be paid when due without offset or reduction. No payment shall be considered paid until it is received by Fresh Milk Software Ltd in cleared funds in full.
6.2 Taxes. All fees are exclusive of applicable taxes. Customer will pay or reimburse all taxes, duties and assessments, if any, based on or measured by amounts payable to Fresh Milk Software Ltd in any transaction between Customer and Fresh Milk Software Ltd under the Agreement (excluding taxes based on Fresh Milk Software Ltd's net income) as set forth on Fresh Milk Software Ltd's invoices as a separate line item, or furnish Fresh Milk Software Ltd with evidence acceptable to the taxing authority to sustain an exemption therefrom.
6.4 Additional Authorized Users. In its discretion, from time to time Fresh Milk Software Ltd may calculate the number of Authorized Users using the Service(s). The quarterly License Fee will be calculated by multiplying the Authorized User License Fee by the greater of the Maximum Number of Users and the number of Authorized Users at the end of the prior quarter. If the number of Authorized Users in a quarter is greater than the Authorized Users at the end of the previous quarter (or in the case of the first month following the Go Live Date, the Maximum Number of Users), the overage associated with those additional Authorized Users will be accrued and added to the invoice for the next quarter. Such number shall be used for each succeeding Invoice Frequency period. In no circumstances shall there be a reduction in License Fees based on any such recalculation.
6.5 Disputed Invoices. In the event that Customer desires to dispute an invoice as to the amounts billed or the timing thereof, Customer shall raise any such issues within ten (10) days of receipt of the invoice in question; in the event that Customer does not timely raise any issues, then the invoice shall be payable in accordance with its terms but as soon as practically possible, the Parties shall cooperate to resolve Customer’s issues and reach an agreement as to the proper amount to be invoiced and/or the proper timing of the invoicing of such amounts, and the Parties shall execute and/or Fresh Milk Software Ltd shall issue such documentation (e.g., credit memos, revised invoices, etc.) as may be necessary to reflect such resolution.
6.6 Late Payment. If Customer is late in paying any part of any monies due under this Agreement or any other agreement between the parties, Fresh Milk Software Ltd may (without prejudice to any other right or remedy available whether under this Agreement, any other agreement between the parties or by any statute, regulation or bye-law) do any or all of the following: (i) charge interest on the amount due but unpaid at 3% above the base rate of HSBC Plc from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly; and/or (ii) suspend the Customer’s access to the Services until payment in full has been made.

7. Ownership of and Restrictions on Customer Data

7.1 Customer Data. Subject to the obligations of Fresh Milk Software Ltd in respect of the Personal Data (as specified in Clause 8 below) the Customer is solely responsible for the Customer Data that Authorized Users upload, publish, display, link to or otherwise make available (hereinafter, "post") on the Service, and Customer agrees that Fresh Milk Software Ltd is only acting as a passive conduit for the online distribution and publication of the Customer Data. Fresh Milk Software Ltd shall retain all rights in and ownership of all data structures, all pseudonymised data and all data analytics not referenceable to a specific Authorized User by name, developed by Fresh Milk Software Ltd; and neither Customer nor any Authorized User shall have any right to such data structures, pseudonymised data or analytics, or to receive or have access to the Customer Data in such data structures or to such analytics, except as necessary for the provision of the Service while this Agreement is in force and effect.
7.2 Restrictions on Use. Fresh Milk Software Ltd will not review, share, distribute, or reference any such Customer Data except as provided herein or as may be required by law. Customer agrees to take commercially reasonable steps to ensure that Authorized Users do not post Customer Data that: (i) may constitute or contribute to a crime or tort; (ii) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (iii) contains any information or content that is illegal; or (iv) contains any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships. Customer represents and warrants that the Customer Data does not and will not violate third-party rights of any kind, under Applicable Laws, including without limitation any Intellectual Property Rights and/or rights of publicity and privacy.
7.3 Loss. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the content of any Customer Data is solely Customer's responsibility. Fresh Milk Software Ltd is not responsible for any public display or misuse of Customer Data, except in the case of negligence or intentional misconduct by Fresh Milk Software Ltd.
7.4 Back Ups. In the event of any loss or damage to Customer Data caused by Fresh Milk Software Ltd, Customer's sole and exclusive remedy shall be for Fresh Milk Software Ltd to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Fresh Milk Software Ltd. Fresh Milk Software Ltd shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (including any third party hosting supplier).

8. Data Protection

8.1 Data Processor. The Parties acknowledge that, in so far as Fresh Milk Software Ltd Processes Personal Data on behalf of Customer in order to provide the Services, Customer is a Data Controller and Fresh Milk Software Ltd is a Data Processor.
8.2 Description of Processing. The Parties acknowledge that: (i) the subject matter, nature and purpose of the Processing of the Personal Data is Processing the Personal Data identified below in connection with, and for the purpose of, providing the Software and the Services to Customer in accordance with the terms of this Agreement; (ii) the duration of the Processing is the Term; (iii) the categories of Data Subject are: Customers, Customer Affiliates, Customer Points of Contact, other personnel at Customers and Customer Affiliates, and Authorized Users; and (iv) the types of Personal Data Processed are: names, job titles, contact details, message content, skills and work experience, performance ratings, social media data, data generated through the Authorized Users' use of the Software, and any other data produced or inputted by Authorized Users in the course of using the Software, but that the above constitutes a general description only and is not intended to be a full list of all Processing operations undertaken by Fresh Milk Software Ltd.
8.3 Processing Obligations. Fresh Milk Software Ltd shall: (i) Process the Personal Data on behalf of Customer and only in accordance with Customer's written instructions as established in this Agreement. The parties agree that this Agreement constitutes Customer's complete and final instructions to Fresh Milk Software Ltd in relation to Processing of Personal Data. Any Processing of Personal Data which goes beyond the scope of this Agreement will require prior written agreement between the Parties as to the scope of the instructions given by Customer to Fresh Milk Software Ltd, including agreement on the additional fees Customer will pay to Fresh Milk Software Ltd for carrying out such further Processing. Fresh Milk Software Ltd shall notify Customer immediately if in Fresh Milk Software Ltd's opinion any of Customer's instructions breach applicable data protection laws; (ii) where it is obliged to process the Personal Data for any other purpose by the Data Protection Legislation, inform Customer of this requirement prior to processing the Personal Data unless such law prohibits this on important grounds of public interest; (iii) take appropriate, commercially reasonable and proportionate technical and organizational measures to guard against the unauthorized or unlawful Processing of Personal Data and against the accidental loss or destruction of, or damage to, the Personal Data, and, where reasonably required by Customer, provide a general written description of the technical and organizational measures it employs for securing the Personal Data; (iv) ensure that only personnel who are bound by obligations to respect the confidentiality of the Personal Data have access to the same; (v) to the extent permitted by Applicable Laws, promptly refer to Customer any requests, notices, complaints or other notifications relating to the Personal Data from Data Subjects, supervisory authorities, or other third parties, for Customer to resolve. The Parties agree that Customer will have primary responsibility for dealing with and responding to any such requests, notices, complaints or other notifications; (vi) at Customer's reasonable request provide Customer with reasonable assistance (taking into account the nature of the Processing and the information available to Fresh Milk Software Ltd) as required by Customer to meet its obligations under the Data Protection Legislation (to the extent applicable to Customer) in so far as they relate to the Personal Data and the Services; (vii) upon Customer's reasonable prior written notice, provide Customer with all information necessary to demonstrate Fresh Milk Software Ltd's compliance with the Data Protection Legislation in so far as it relates to the Processing of the Personal Data and the Services, and permit Customer to conduct an audit of Fresh Milk Software Ltd's security and privacy practices, including, undertaking reasonable inspections of Fresh Milk Software Ltd's security environment; (viii) without undue delay, notify Customer on becoming aware of any accidental, unauthorized or unlawful destruction, loss, alteration or disclosure of, or access to, the Personal Data; and (ix) subject to Clause 7.1, on termination of this Agreement for any reason, at Customer's discretion, delete or return all the Personal Data to Customer, unless Fresh Milk Software Ltd is required to retain the Personal Data in order to comply with any Applicable Laws.
.4 Sub-Processors. Fresh Milk Software Ltd shall not engage any third party to carry out the Processing of the Personal Data (a "Sub-Processor") without Customer's prior consent. Where Customer does consent to Fresh Milk Software Ltd engaging a Sub-Processor, Fresh Milk Software Ltd will impose appropriate contractual obligations in writing upon the Sub-Processor that are no less protective than those contained in this Clause 8, and Fresh Milk Software Ltd will remain responsible for its compliance with the obligations of this Clause 8 and for any acts or omissions of any Sub-Processor that causes Fresh Milk Software Ltd to breach any of its obligations under this Clause 8. Customer hereby consents to Fresh Milk Software Ltd using Sub-Processors to provide the Services and otherwise fulfil its obligations to Customer under this Agreement, or to provide support services on Fresh Milk Software Ltd's behalf. The current approved Sub-Processors are: Amazon Web Services for the purpose of providing cloud based storage and software services;
8.5 Transfers of Personal Data. Except for transfers of Personal Data to Customers, Customer Affiliates, the Customer Contact, other personnel at Customers and Customer Affiliates and Authorized Users, Fresh Milk Software Ltd does not currently process Personal Data on behalf of Customer in, or transfer such Personal Data to, Third Countries, but in the event, that it becomes necessary for Fresh Milk Software Ltd to do so, it agrees to take steps necessary to ensure that such transfers are undertaken in a manner which is compliant with applicable Data Protection Legislation.
8.6 Privacy Policy. The terms and conditions of the Fresh Milk Software Ltd Privacy Policy from time to time published by Fresh Milk Software Ltd on its website (www.freshmilksoftware.com) and provided to Customer shall apply to Customer Data in addition to this Clause 8 and to Customer's and its Authorized Users' use of the Services. The Fresh Milk Software Ltd Privacy Policy may be amended from time to time, which amendments shall be effective upon Fresh Milk Software Ltd publishing the same on its website. In the event of any conflict between this Agreement and the Privacy Policy this Agreement takes precedence.

9. Term and Termination

9.1 Term. The Initial Term of the Agreement will commence as of the Effective Date and will end upon the last day of the calendar month of the Initial License Term, or if earlier, upon termination in accordance with Clauses 9.2 or 9.3 below. Following the Initial Term, the term of this Agreement shall be automatically renewed on an annual basis (each a “Renewal Term"), unless either party elects not to extend by written notice given at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term.
9.2 Termination. Without affecting any other right or remedy available to it, either party may terminate or suspend this Agreement immediately by notice in writing to the other party if: (i) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than (thirty) 30 days after being notified in writing to make such payment; (ii) the other party fails to remedy any material breach of this Agreement after having been required in writing to remedy such breach within a period of no less than thirty (30) days; or (iii) in any event, (where the terminating party is Fresh Milk Software Ltd) Customer is in breach of, or is using the Services and/or, the Software contrary to, the terms of this Agreement or is otherwise infringing Fresh Milk Software Ltd’s Intellectual Property Rights.
9.3 Effect of Termination. If this Agreement is terminated pursuant to and in accordance with Clause 9 then, unless otherwise specifically provided for in writing by the parties, the following will apply: (a) the License rights granted to Customer with respect to the Services and the Software will terminate effective as of the effective date of the termination; (b) Customer will return to Fresh Milk Software Ltd any and all Confidential Information of Fresh Milk Software Ltd in the possession or control of Customer; (c) Fresh Milk Software Ltd will return to Customer any and all Confidential Information of Customer in its possession or control; (d) unless otherwise agreed upon by the parties, Fresh Milk Software Ltd will have no obligation to provide the Services to Customer or Authorized Users after the effective date of the termination; (e) Customer will pay to Fresh Milk Software Ltd any amounts payable for Customer's and Authorized User's use of the Services through the effective date of the termination; and (f) Fresh Milk Software Ltd will provide Customer and its Authorized Users with access to their respective Customer Data until twenty (20) days following the date of termination, at which point such access shall cease. No refunds of prepaid Fees shall be made to Customer in connection with any termination pursuant to Clause 9. Notwithstanding the foregoing, each Party may retain such copies of the foregoing items as may be required by law or such Party’s archival policy requirements and for no other purpose and all such materials shall be and remain confidential information for as long as such Party retains same.
9.4 Survival. Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced. Termination of this Agreement will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

10. Warranties

10.1 Fresh Milk Software Ltd Warranties. Fresh Milk Software Ltd shall provide the Services using reasonable skill and care and materially in compliance with the Product Description and Service Level Agreement. If Fresh Milk Software Ltd fails to comply with the warranty set out in this Clause 10.1, it shall use its reasonable endeavors to rectify, repair or correct such failure within a reasonable time and in accordance with the Service Level Agreement. Fresh Milk Software Ltd's obligations under this Clause 10.1 shall be Customer's sole and exclusive remedy in respect of such breach of warranty. Fresh Milk Software Ltd’s warranty in this Clause 10.1 shall not apply where the breach of warranty results in whole or in part from Customer’s or any Authorized User’s use of the Services or the Software in any manner not permitted by this Agreement, or from Customer’s noncompliance with its obligations under the Service Level Agreement, or from Customer’s or any Authorized User’s Equipment or other computer hardware, software or network, or from any alterations made to the Services or the Software by Customer or any Authorized User not approved in writing by Fresh Milk Software Ltd.
10.2 Hosting. Customer acknowledges and agrees that Fresh Milk Software Ltd is using a third party hosting supplier to provide hosting services for the Services. Currently, Fresh Milk Software Ltd utilizes a mix of proprietary services in hosted data centers including Amazon Web Services (“AWS”) and may change its providers from time to time (AWS or any such other provider is herein referred to as a “Hosting Provider”). All access to the Services and/or the Software will be through the Hosting Provider and will be subject to the terms and conditions required by the Hosting Provider (“Hosting Provider Terms”). All Hosting Provider Terms (including those for AWS which are found at https://aws.amazon.com/legal/) and the terms and conditions of any other Hosting Provider) are incorporated herein by reference. The availability of the Services is subject to the availability of the Hosting Provider’s services. Without prejudice to the additional limitations and exclusions of Fresh Milk Software Ltd's liability in Clause 12, Fresh Milk Software Ltd's liability to Customer (howsoever arising, including in negligence) in connection with such hosting services (or any failure of such hosting services) shall not exceed the amounts recovered by Fresh Milk Software Ltd from the third party hosting supplier in respect of Customer's loss in such circumstances.
10.3 Disclaimer. Save as set out in the Agreement, Fresh Milk Software Ltd does not warrant, represent, undertake or agree that: (i) the Services or the Software will meet Customer’s requirements nor that any recommendations derived from the Software or the Services will deliver any particular benefits if implemented; (ii) that the operation of the Services and/or the Software will be uninterrupted or error-free; (iii) that defects in the Services and/or the Software will be corrected; (iv) that the Services or Software will be secure or free from bugs or viruses or that the Services will be accessible using web browsers not approved by Fresh Milk Software Ltd; or (v) that the functions of the Services and/or the Software will operate in the combination with Equipment or other computer software or hardware which Customer selects for use. To the extent permitted by law, Fresh Milk Software Ltd disclaims all other conditions, warranties or other terms which might have effect between the parties with respect to the Services or the Software, or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, including any implied conditions, warranties, or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose or ability to achieve a particular result.
10.4 Customer Responsibilities. Customer must provide Fresh Milk Software Ltd with all information, Customer Data, assistance, approvals and co-operation as may be required by Fresh Milk Software Ltd in order for Fresh Milk Software Ltd to render the Services and resolve any issues raised under Clause 10.1 and/or to provide the Services, including, but not limited to, sufficient information to enable Fresh Milk Software Ltd to locate and/or recreate any defect or fault in the Services or the Software. In the event of any delays in Customer's provision of such assistance as agreed by the parties, Fresh Milk Software Ltd may adjust any timetable or delivery schedule for any Services as reasonably necessary as a result of the delay and Customer shall reimburse Fresh Milk Software Ltd and its respective sub-contractors additional costs resulting from the delay. Customer shall comply with all Applicable Laws and regulations with respect to its activities under this Agreement and carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.

11. Indemnification

11.1 Indemnity by Fresh Milk Software Ltd. Fresh Milk Software Ltd shall indemnify and keep indemnified Customer in respect of any and all losses incurred or suffered by or made against Customer in connection with any claim that the Services or the Software infringes or misappropriates the Intellectual Property Rights of a third party.
11.2 In connection with the indemnity in Clause 11.1, Customer shall: (i) promptly notify Fresh Milk Software Ltd of any actual or threatened claim; (ii) make no admissions without Fresh Milk Software Ltd’s prior written consent; and (iii) consult with Fresh Milk Software Ltd regarding the defense of any claim and take reasonable account of the opinion of Fresh Milk Software Ltd regarding the defense of any claim. Fresh Milk Software Ltd shall not be liable under the indemnity in Clause 11.1 if the claim results from any modification made to any part of the Services or the Software other than by Fresh Milk Software Ltd or with Fresh Milk Software Ltd’s written consent.
11.3 If in the reasonable opinion of Fresh Milk Software Ltd a claim is likely to be made or brought, or if a court judgment is made that any part of the Services or the Software infringes the Intellectual Property Rights of a third party, Fresh Milk Software Ltd may, at its sole option and expense, provide either or a combination of the following remedies, which (if provided) shall, together with the indemnity in this Clause 11.2 be the Customer’s sole remedy in respect of the infringement: (i) modify the Services or the Software without reducing the performance and functionality of the same, or substitute alternative assets of equivalent performance and functionality, in each case so as to avoid the claim; and/or (ii) procure any Licenses required to avoid the claim. If Fresh Milk Software Ltd is unable to do either, it may terminate this Agreement and refund the Fees paid by Customer (less a reasonable amount in consideration of the benefit already received by Customer) and require Customer to cease all further use of the Services and the Software. Any such refund shall, together with the indemnity in Clause 11.1, be Customer’s sole remedy in respect of the infringement giving rise to termination and the termination itself.

12. Limitations of Liability

12.1 Neither party excludes or limits its liability for: (i) its fraudulent misrepresentation; (ii) death or personal injury caused by its negligence; (iii) infringement or misuse of the other party's Intellectual Property Rights (including by third parties given access to the Services and/or the Software; (iv) any liability to pay any Fees; or (v) any other liability which cannot be excluded or limited by Applicable Law.
12.2 Fresh Milk Software Ltd will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may infect Customer's computer equipment, computer programs, data or other proprietary material due to Customer's Use of the Services or to its downloading of any content provided as part of the Services, or on any website linked to it. Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for results obtained from the use of the Services by Customer, and for conclusions drawn from such use. Fresh Milk Software Ltd and its affiliates shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Fresh Milk Software Ltd by Customer in connection with the Services, or any actions taken by Fresh Milk Software Ltd at Customer’s direction.
12.3 Subject to Clauses 12.1, 12.2, 12.4 and 12.5, the liability of each Party (whether in contract, negligence, tort, restitution or otherwise) for other losses is limited in any twelve month period (commencing on the Effective Date or each anniversary thereof, as applicable) to 200% of the total amounts paid and which would be payable under this Agreement in the previous 12 months.
12.4 Subject to Clauses 12.1, 12.2 and 12.5, the aggregate liability of each Party (i) pursuant to any indemnity; or, (ii) (whether in contract, negligence, tort, restitution or otherwise) for breach of its obligations in relation to Restrictions of Use (Clause 2.2), Intellectual Property (Clause 3 Data Protection (Clause 8), Confidentiality (Clause 13.1) and Non-Competition Clause (14.7) shall not exceed two million pounds (£2,000,000).
12.5 Subject to Clause 12.1, neither party shall have any liability (whether in contract, negligence, misrepresentation, tort, restitution or otherwise) under or in connection with this Agreement in respect of any: (i) indirect or consequential losses, damages, costs or expenses; (ii) loss of actual or anticipated profits; (iii) loss of contracts, loss of business or loss of opportunity; (iv) loss of use of money; (v) loss of anticipated savings; (vi) loss of revenue or ex gratia payments; (vii) loss of goodwill or reputation; (viii) loss of operation time; or (ix) loss of, damage to or corruption of, data (in each case, except (i), whether such losses are direct, indirect, consequential or otherwise).

13. Confidentiality & Publicity

13.1 Confidentiality. Each party shall: (i) use the Confidential Information of the other party only as permitted under this Agreement and will use the same standards as it applies to its own Confidential Information, but in no event less than reasonable measures, to prevent the disclosure of such Confidential Information to any third party without the other party’s prior written consent; and (ii) procure that its employees and Authorized Users are bound to the standard of confidentiality required under this Agreement. Fresh Milk Software Ltd may disclose details of this Agreement (subject to appropriate confidentiality arrangements) if Fresh Milk Software Ltd is sold, invested into or integrated with another business, and, subject to appropriate confidentiality agreements no less onerous than the confidentiality obligations set out herein, such details may be disclosed to Fresh Milk Software Ltd’s advisers and any prospective investors and their advisers.
13.2 Publicity and Announcements. In accordance with Clause 3.3, each Party shall seek the other Party’s prior written consent before using the other Party’s name, logos and/or other trademarks in marketing documents, publicity materials and other external communication formats including announcements, pitch documents, credentials, case studies, testimonials, websites and campaigns. Such consent shall not be unreasonably withheld or delayed but the other Party may make such consent conditional on approving the final form of the relevant communication before such communication is made available to the public. The parties shall agree in good faith a press release which shall be issued upon signing of this Agreement and all further press releases will be developed in accordance with this Clause and issued upon Go Live.

14. General

.1 Assignment. Neither party may sub-contract, assign, transfer, sub-license, declare a trust of, mortgage, charge or otherwise deal with any of its rights or obligations under this Agreement without the other party’s prior written consent (not to be unreasonably withheld or delayed).
14.2 Notices. Any notice or other communication given under this Agreement shall be in writing and shall be served by delivering it personally or sending it by first class post, registered post or courier (or by airmail if overseas) to the address and for the attention of the relevant individual set out in the applicable Order Form. Any party hereto may change its address as listed in the applicable Order Form by notifying the other parties of such change, but such notice shall not be effective until and unless actually received.
14.3 Waiver. The failure to exercise or delay in exercising a right, power or remedy provided by this Agreement or by law shall not impair or constitute a waiver of the right, power or remedy or operate as an impairment or a waiver of other rights, powers or remedies. If a party waives a breach of any provision of this Agreement this shall not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.4 Severability. If any provision, or part of a provision, of this Agreement, including any provision contained in any Services Order Form or Statement of Work, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision shall be deemed not to form part of this Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement shall not be affected, unless otherwise required by operation of Applicable Law.
.5 Applicable Law. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.
14.6 Entire Agreement. The Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of the Agreement. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with the Agreement which are in addition to, inconsistent with or different from the terms and conditions of the Agreement shall be of no force or effect.
14.7. Variation. No variation of this Agreement shall be effective unless in writing, signed by each of the parties or by their duly Authorized representatives and expressed to be a variation.
14.8 Non-Compete. As part of the consideration for this Agreement, Customer confirms to Fresh Milk Software Ltd that Customer has no plans to develop or distribute software, services, or technology providing the same or similar functionality as the Fresh Milk Software Ltd Service(s) in the area of Fresh Milk Software Ltd's core business offering, namely a software platform enabling internal collaboration through matching technology and agrees not to do so for a period of twelve (12) months following the termination of Customer’s use of the Fresh Milk Software Ltd Service.
14.9 Counterparts. The Agreement may be executed including by electronic signature in two or more counterparts, each of which shall be deemed to be an original and each of which together shall constitute a single instrument.
14.10 Force Majeure. For the purposes of this Clause 14.10, “Force Majeure” means any strikes, lock-outs or other industrial disputes (whether involving the workforce of the Customer or Fresh Milk Software Ltd or any other party), act of God, war, riot, civil commotion, act of terrorism, malicious damage, breakdown of plant or machinery, changes in law or regulation, fire, flood, storm, earthquake, explosion or any other event of a similar nature beyond a party’s reasonable control. Neither party shall be liable to the other in any way whatsoever for any breach of its obligations under this Agreement or for a delay in performing them to the extent that such breach or delay results from Force Majeure subject to the affected party promptly notifying the other in writing of the reasons for the breach or delay (and the likely duration of any delay). The performance of each party’s obligations shall be suspended during the period that the Force Majeure circumstances subsist and it shall be granted an extension of time equal to the period of the delay provided that if performance is not resumed with thirty (30) days after the commencement of the Force Majeure event, the Agreement may be terminated immediately by either party giving written notice to the other.
14.11 Source Code. The parties on or before the Effective Date shall enter into a source code agreement that will provide that, in the event Fresh Milk Software Ltd is liquidated, dissolved or ceases to carry on its business, or otherwise becomes unable to support the customers or their affiliates use of the Software on commercially reasonable terms, where the customer can demonstrate that access to the source code is reasonably necessary for the customer’s continued use of the Software and provided that the customer is not in default under this Agreement, a copy of the latest version of the Software source code shall be provided to the customer solely for the purpose of the Software Development Road Map that will be provided by Fresh Milk Software in this event.
14.12 Third Parties. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999, or any similar law or regulation in any other jurisdiction, to enforce any provision of this Agreement.

SCHEDULE - PRODUCT DESCRIPTION

Fresh Milk Software Ltd Service

Specification of software: The following is a top-level feature outline of Fresh Milk Software Ltd’s current functionality (per contract date). Many of these features are optional and/or can be governed by permissions groups. The pertinent features for your requirements will be established during the iterative process to configure your instance.

Modules

Leads, Accounts & Contacts (CRM)
Estimating & Quoting
Branded Customer Notifications
Online Payments
Invoicing
Jobs & Work Orders
Location-Based Scheduling
Sites Management
Multiple Service Types
Field team & Crew Dispatching
Branded Customer Notifications
Asset Management
Online Booking
Location Specific Pricing & Taxes
Campaign & Coupons
Estimating & Quoting
Price list management
Payment Gateway
Estimating & Quoting V2
Client Portal
Crew & field team portal
Configurable App
Customized URL
Sales & Operations Reports
Customizable Reports
Company Branded System
Branded App
Franchise Module
Partner Module
Continuous Content Creator (SEO)
Configurable Workflows
Client App
HR and Field Team Payments

SCHEDULE 2 - SERVICE LEVEL AGREEMENT

A. Services Availability. During the Term of the Agreement, and from and after Go Live of the applicable Phase, the Fresh Milk Software Ltd Service web interface will be operational and available to Customer at least 99% of the time in any time zone in any calendar month (the "Fresh Milk Software Ltd Performance Commitment”). If Fresh Milk Software Ltd does not meet the Fresh Milk Software Ltd Performance Commitment and if Customer's failure to meet its obligations under the Agreement does not contribute to any applicable downtime, Customer will be eligible to receive the Service Credits described below as its sole and exclusive remedy for any failure by Fresh Milk Software Ltd to provide the Service.
1) Definitions. The following definitions shall apply to the Fresh Milk Software Ltd Performance Commitment.
a) "Downtime" means, for a domain, if there is more than a five percent user error rate. Downtime is measured based on server side error rate.v
b) "Downtime Period" means, for a domain, a period of ten (10) consecutive minutes of Downtime. Intermittent Downtime for a period of less than ten minutes will not be counted towards any Downtime Periods, provided that no more than three (3) such intermittent interruptions occur in any one (1) month.
c) "Monthly Uptime Percentage" means total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in a calendar month, divided by the total number of minutes in a calendar month.
d) "Scheduled Downtime" means those times where Fresh Milk Software Ltd notifies Customer of periods of Downtime at least 1 day prior to the commencement of such Downtime. There may be a number of days of Scheduled Downtime per calendar year during non-Business Days for Customer (based on where Fresh Milk Software Ltd’s headquarters is located). Scheduled Downtime is not considered Downtime for purposes of the Fresh Milk Software Ltd Performance Commitment, and will not be counted towards any Downtime Periods.
e) "Services" means the services provided by Fresh Milk Software Ltd to Customer under the Agreement.
f) "Service Credit" means the following:
Monthly Uptime Percentage. Days of Service added to the Term, at no charge to Customer. < 99.0%->=95.0% 1 < 95.0%->= 90.0% 3 < 90.0%->85.0% 5
In order to receive any of the Service Credits described above, Customer must notify Fresh Milk Software Ltd within thirty days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer's right to receive a Service Credit.
g) “Maximum Service Credit”. The aggregate maximum number of Service Credits to be issued by Fresh Milk Software Ltd to Customer for any and all Downtime Periods that occur in a single calendar month shall not exceed five (5) days of Service added to the end of Customer's term for the Service. Service Credits may not be exchanged for, or converted to, monetary amounts.
h) “Fresh Milk Software Ltd Performance Commitment Exclusions”. The Fresh Milk Software Ltd Performance Commitment does not apply to any performance issues: (i) that resulted from Customer's equipment or third party equipment or software, or both (not within the primary control of Fresh Milk Software Ltd); (ii) improper use of the Service or the uploading of improper data by Customer or its Authorized Users; or (iii) caused by a Force Majeure Event.
B. Support Services. Fresh Milk Software Ltd will provide Support Services in accordance with this Clause B.
Fresh Milk Software Ltd provides two levels of Support Services: Standard and Enhanced. Standard Support Services are described in this Part B of Schedule 2 and are included in the License Fee.
Enhanced Support Services are Professional Services and as such will be covered by a Statement of Work as and when required by the Customer.
Customer may purchase additional Enhanced Support Services at any time at Fresh Milk Software Ltd’s then-current price.
1) Support Procedure. Authorized Users may submit support cases via the “Help” tab within the Service itself, or by contacting their Customer Point of Contact. In either case if there is a product fault, the name and contact information of the Authorized User and details of the fault will be required to raise a support ticket. Actual resolution time will depend on the nature of the fault and the required resolution. A resolution may consist of a fix, workaround or other solution in Fresh Milk Software Ltd’s reasonable determination. The Customer Point of Contact may be required to approve the proposed resolution.
In the event that the Service is unavailable, support cases may be submitted via the Customer Point of Contact or the Customer’s own information technology help desk if available.
2) Support Hours. Fresh Milk Software Ltd will provide the Support Services during the hours from 9:00 a.m. until 5:00 p.m., local time, London, England, on Business Days. Support cases can be submitted outside of Support Hours. Fresh Milk Software Ltd recognizes that Customer’s business operates in multiple time zones and undertakes to use reasonable endeavors to resolve service issues as soon as is practical but in any event within the agreed Response Times once Support Hours next resume.
3) Cooperation. Fresh Milk Software Ltd must be able to reproduce errors in order to resolve them. Customer will agree to cooperate and work closely with Fresh Milk Software Ltd to reproduce errors, including conducting diagnostic or troubleshooting activities, as requested and appropriate.
4) Severity Levels. Reproducible errors that cannot promptly be resolved will be escalated to higher support tiers for further investigation and analysis. For example, issues will be generally categorized and handled according to an assigned severity level, as follows:
Severity Level Description and Examples Response Times
Sev A (Critical) Service unusable for majority of end-users. 1 hour - if reported during Business Day
Next Business Day – if reported outside UK business hours
Sev B (High) Service is usable but severely impaired. Next Business Day
Sev C (Medium) Product does not work as expected, but a workaround is available. Next Business Day
In each case, where a support case is logged less than one (1) hour before the close of support hours as set forth in paragraph B2, above, the case shall be deemed to have been logged on the following Business Day.