Terms of Contract

• 1. INTERPRETATION

  • 1. The definitions and rules of interpretation in this clause apply in this Agreement.

    Authorised Users: those locations who are authorised by Customer to use the Services and the Documentation, as further described in the Documentation.

    Business Day: any day which is not a Saturday, Sunday or public holidays in the Thailand.

    Change of Control: the direct or indirect acquisition of either the majority of the voting stock, or of all, or substantially all, of the assets, of a party by another entity in a single transaction or a series of transactions.

    Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 19.

    Configuration Services: the design and configuration services (which may include the creation of Content) to be provided pursuant to this Agreement as set out in the Order Confirmation Form.

    Content: all text, information, data, software, executable code, images, audio or video material in whatever medium or form provided by Carazor to Customer for incorporation in the Customer Website or otherwise for use as part of the Services.

    Customer Data: the data inputted by Customer, Consumer, Authorised Users, or Carazor on Customer’s behalf for the purpose of using the Services or facilitating Customer’s use of the Services.

    Customer Website: any website hosted, managed on behalf of or provided to Customer by Carazor as part of the Services.

    Disaster: an incident or event which:

    • 1. threatens full and total system outage or total workflow interruption to multiple users; and
    • 2. requires special measures to be taken to restore systems to full working order.

    Documentation: the documents made available to Customer by Carazor online via www.carazor.com or such other web address notified by Carazor to Customer from time to time which sets out a description of the Services and the user instructions for the Services.

    Effective Date: is the date of the signature of the Order Confirmation Form.

    Fees: The fees set out in the Order Confirmation Form (including as applicable the Set-Up Fees, the Subscription Fees and any other fees connected with the Services).

    Initial Subscription Term: Period set out in the Order Confirmation Form.

    Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights, moral rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.

    Liabilities: all liabilities, damages awarded and amounts paid or payable under judgments or settlements arising from third party claims, and all reasonable and necessary litigation costs and expenses related thereto (including all legal and other professional fees, expenses and disbursements).

    Normal Business Hours: 9.00 am to 5.30 pm each Business Day.

    Order Confirmation Form: the order confirmation provided by Carazor in accordance with clause 2.1 which shall include the agreed Fees.

    Renewal Period: the period described in clause 22.1.

    Services: the services provided by Carazor to Customer under this Agreement, as more particularly described in the Order Confirmation Form including where applicable Configuration services.

    Service Credits: the service credits set out in of Schedule 1.

    Service Levels: the service levels set out in Schedule 1.

    Set-Up Fees: the set-up fees payable by Customer to Carazor for the re-activation of the Services (including any domain name registration or domain name connection), in the amount of 1000 THB.

    Software: any online software applications provided by Carazor to the Customer as part of the Services.

    Subscription Fees: the subscription fees payable by Customer to Carazor for the User Subscriptions, as set out in the Order Confirmation Form.

    Subscription Term: has the meaning given in clause 22.1.

    Support Hours: the hours during which applicable Support Services are performed as set out in clause 12.

    Support Services: the support and maintenance services described in Part B of this Agreement and Schedule 1.

    User Subscriptions: the user subscriptions purchased by Customer pursuant to clause 17.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

    Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. For the avoidance of doubt web harvesting and web scraping shall also be considered a virus.

  • 2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
  • 3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
  • 4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • 5. Words in the singular shall include the plural and vice versa.
  • 6. A reference to one gender shall include a reference to the other genders.
  • 7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
  • 8. A reference to writing or written includes faxes but not e-mail.
  • 9. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
  • 10. The terms the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

PART A: OPERATIONAL TERMS

• 2. TERMS AND CONDITIONS
  • 1. Carazor shall provide Customer with an Order Confirmation Form together with, or in advance of this Agreement. In entering into this Agreement the Customer accepts the terms of the Order Confirmation Form, which shall be incorporated into this Agreement.
  • 2. Carazor reserves the right to make changes to the Agreement at any time.
• 3. USER SUBSCRIPTIONS

  • 1. In relation to the Authorised Users, Customer undertakes that:

    • 1. the maximum number of Authorised Users that it authorises to access and use the relevant Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
    • 2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the relevant Services and/or Documentation; and
    • 3. each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential.

  • 2. Customer shall not:

    • 1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: (a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
    • 2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
    • 3. use the Services and/or Documentation to provide services to third parties, without the prior written consent of Carazor; or
    • 4. subject to clauses 18.4 and 18.1 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
    • 5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
  • 3. Customer shall use all reasonable endeavors to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
  • 4. The rights provided under this clause 3 are granted to Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
• 4. ADDITIONAL USER SUBSCRIPTIONS
  • 1. Subject to clause 4.2 and clause 4.3, Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Confirmation Form and Carazor shall grant access to the relevant Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.
  • 2. If Customer wishes to purchase additional User Subscriptions, Customer shall notify Carazor in writing. Carazor shall evaluate such request for additional User Subscriptions and respond to Customer with approval or disapproval of the request (such approval not to be unreasonably withheld).
  • 3. If Carazor approves Customer’s request to purchase additional User Subscriptions, Customer shall, within 30 days of the date of Carazor invoice, pay to Carazor the relevant Fees for such additional User Subscriptions as set out in the Order Form and, if such additional User Subscriptions are purchased by Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
• 5. SERVICES
  • 1. Carazor shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
  • 2. Carazor reserves the right to disable and/or suspend the Customer’s User Subscription and access to all or part of the Services, without liability to the Customer, for any breach by Customer or Authorised Users of this Agreement.
  • 3. Carazor shall use commercially reasonable endeavours to make the Software available 24 hours a day, seven days a week, except for:
    • 1. planned maintenance carried out during the maintenance window of midnight to 4.00 am GMT; and
    • 2. unscheduled maintenance performed outside Normal Business Hours, provided that the Carazor has used reasonable endeavours to give Customer at least 6 Normal Business Hours’ notice in advance.
  • 4. Carazor will, as part of the Services, provide the Customer with the Support Services.
  • 5. Customer may subject to Carazor’ acceptance of its order purchase Configuration Services and other enhanced services at Carazor’ then current rates published on its website or otherwise notified to Customer from time to time.
• 6. CONFIGURATION SERVICES
  • 1. Customer acknowledges that Carazor’ ability to provide the Configuration Services is dependent upon Customer’s full and timely co-operation, as well as the accuracy and completeness of any information and data Customer provides to Carazor. Accordingly, Customer shall:
    • 1. provide Carazor with access to, and use of, all information, data and documentation reasonably required by Carazor for the performance by Carazor of its obligations under this Agreement; and
    • 2. obtain all necessary approvals and consents to allow Carazor to use relevant third party Intellectual Property Rights in the provision of the Configuration Services including particularly logos, brand imagery, trade marks, and copyrights.
  • 2. Where Customer orders 3D car modelling and visualisation services as part of the Configuration Services Customer is responsible for obtaining all necessary approvals and consents from relevant third party rights owners (including Intellectual Property Rights) to allow Carazor to provide those services and to enable the rendered 3D model(s) to be uploaded to and publicly accessible from the Customer Website.
• 7. CUSTOMER DATA
  • 1. Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
  • 2. Customer herby grants to Carazor a perpetual, non-exclusive, transferable right to use the Customer Data for the purpose of marketing, business analysis, promotional activity, and for use in connection with the provision to other customers of Carazor software or services including the right to transfer the Customer Data to third parties, subject to the permissions obtained pursuant to the notice described in clause 7.4.
  • 3. The Customer undertakes to Carazor that, where Customer Data includes personal data the disclosure and provision of any such Customer Data to Carazor shall be performed only where the relevant customer has indicated consent to the disclosure of its personal data to Carazor.
  • 4. The Customer agrees that the Customer Website shall display an appropriate notice to all users of the website as to the terms on which the processing of Customer Data is conducted, such notice to be agreed with Carazor in advance.
  • 5. In the event of any loss or damage to Customer Data, Customer’s sole and exclusive remedy shall be for Carazor to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Carazor as part of the Support Services. Carazor shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Carazor to perform services related to Customer Data maintenance and back-up).
  • 6. If Carazor processes any personal data on Customer’s behalf, Customer shall for the purposes of the Data Protection be the data controller and Carazor shall be a data processor (both as defined therein) and in any such case:
  • • 1. Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where Customer and the Authorised Users are located in order to carry out the Services and Carazor’ other obligations under this Agreement;
    • 2. Customer shall ensure that Customer is entitled to transfer the relevant personal data to Carazor so that Carazor may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf;
    • 3. Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
    • 4. Carazor shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
    • 5. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage;
    • 6. Carazor shall on the Customer’s request, and unless required by law to do otherwise, return such personal data to the Customer and destroy any copies of such data that Carazor holds.
  • 7. The provisions of this clause 7 shall survive termination or expiry of this Agreement.
• 8. THIRD PARTY PROVIDERS
  • 1. Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Carazor makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by Customer, with any such third party.
• 9. CARAZORS OBLIGATIONS
  • 1. Carazor undertakes that the Services will be performed substantially in accordance with the Documentation and the Order Confirmation Form and with reasonable skill and care.
  • 2. The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Carazor instructions, or modification or alteration of the Services by any party other than Carazor or Carazor’ duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Carazor will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes Customer’ sole and exclusive remedy for any breach of the undertaking set out in clause 9.1 Notwithstanding the foregoing, Carazor:
    • 1. does not warrant that Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by Customer through the Services will meet Customer’s requirements; and
    • 2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • 3. Carazor shall comply with all applicable laws and regulations with respect to its performance of the Services under this Agreement.
  • 4. This Agreement shall not prevent Carazor from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
  • 5. Without prejudice to clause 10.1.5, Carazor warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement. Notwithstanding the foregoing, and whilst Carazor shall use reasonable endeavours to register any domain names over which Services are provided in the name of the Customer, Carazor does not warrant or commit that such registration will be successful and Carazor shall not be liable for any Liabilities in the event of the domain having been registered by a third party other than a refund of any fees paid by Customer in connection with such domain name registration.
• 10. CUSTOMER’S OBLIGATIONS

  • 1. Customer shall:

    • 1. provide Carazor with: (a) all necessary co-operation in relation to this Agreement; and(b) all necessary access to such information as may be required by Carazor; in order to render the Services, including but not limited to Customer Data, security access information and Configuration Services;
    • 2. comply with all applicable laws and regulations with respect to its activities under this Agreement;
    • 3. carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in Customer provision of such assistance as agreed by the parties, Carazor may adjust any agreed timetable or delivery schedule as reasonably necessary;
    • 4. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and be responsible for any Authorised User’s breach of this Agreement;
    • 5. obtain and maintain all licences, consents, and permissions necessary for Carazor, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services, and to allow Carazor to use the Customer Data for the purposes set out in this Agreement and as notified to the Customer in writing from time to time;
    • 6. ensure that its networks and systems comply with the relevant specifications provided in the Documentation and by Carazor by any other means from time to time;
    • 7. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Carazor data centres, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links or caused by the internet; and
    • 8. comply with the PCI Security Standards Council’s Data Security Standards and any other similar standards as in force from time to time.
  • 2. Customer shall not access, store, distribute or transmit or allow any Viruses, or any material during the course of its use of the Services that: is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; causes damage or injury to any person or property; or causes increased internet load to the Software.
  • 3. Customer shall ensure that any material being uploaded to the Customer Website, either by Carazor or directly by the Customer, is not in breach of any third party’s Intellectual Property Rights. Carazor accepts no responsibility for the Customer’s actions in either uploading material including Content to any Carazor authorised web space, or to any other web space on any server.
  • 4. Customer will include appropriate notices and disclaimers in relation to Content displayed on or made publicly available via Customer Website as prescribed by Carazor.
  • 5. Customer agrees not to use Carazor’ servers to send unsolicited or spam e-mail to other internet users. Carazor will, at their sole discretion, decide what constitutes spam e-mails for the purposes of this agreement. Any breach of this clause shall for the purposes of clause 22 be a material breach of this Agreement incapable of remedy.

PART B: SUPPORT TERMS

• 11. SERVICE SUPPORT
  • 1. The Support Services includes the following:
    • 1. Investigation of and assistance with issues affecting the operation of and/or access to the Services;
    • 2. In relation to the Software:
      • (a) Investigation of incidents and service failures;
      • (b) Remote diagnosis and, where possible, correction of faults, more specifically to correct all errors, bugs and failures of the Software to comply with any term of the Documentation;
      • (c) Development and implementation of patches and updates where appropriate; and
      • (d) Provisions of a contactable helpdesk during the Support Hours.
  • 2. The Support Services do not include any of the following, which Carazor may at its sole discretion, provide to the Customer on request at Carazor then current rates:

    • 1. Any fault or error resulting from:

      • (a) The use of any hardware or software not supplied by or approved in writing by Carazor;
      • (b) Any modifications to the Software or Services by any person other than Carazor or a person authorised by Carazor;
      • (c) Unauthorised use of the Software (including its use otherwise than in accordance with the Documentation), operator error, or otherwise from the omission or unauthorised acts of the Customer in connection with the Services;
    • 2. Infrastructure and/or hardware set-up and configuration queries, including the use of unsupported Internet browsers and operating systems, for the avoidance of doubt unsupported Internet Browsers and operating systems shall be classified as those which are no longer supported by the producer of the technology;
    • 3. Any fault in any third party software or systems other than to the extent that such third party software is the subject of support services provided by Carazor;
    • 4. Any services provided our work carried out by Carazor outside of the Support Hours;
    • 5. Training, consultancy or advice or assistance regarding functionality of the Software;
    • 6. Development, non-standard configurations, and bespoke changes made to the individual Customer software.
  • 3. Integrated third party solutions are not covered by these Service Level Agreements and whilst Carazor will work towards standard support processes to resolve any issues the time to resolve will always be subject to the suppliers own response times and commercial commitments between the client and the third party.
• 12. SERVICE HOURS
  • 1. In the event of an entire failure of the Services (system outage) or total workflow interruption to multiple users Support Services will be provided 24x7x365.
  • 2. Support Services for any other support calls are available during the Normal Business Hours.
  • 3. Out of hours requests will be received but not processed until the commencement of Support Hours on the following Business Day.
• 13. SERVICE ENGAGEMENT
  • 1. When requesting the provision of Support Services the Customer shall:
    • 1. Log a support call in accordance with the procedures set out in Schedule 1;
    • 2. Provide reasonable assistance to Carazor during any investigation of any error or fault;
    • 3. Keep Carazor updated with any changes within Customer’s business that may affect the provisions of the Support Services, including changes to operating procedures and practices, changes in hardware, software, systems and networks which are not provided by Carazor.
  • 2. Support Services are provided on the basis that Customer’s maintain up to date Software. Carazor shall install, implement and integrate any updates (including new service packs, patches, and other releases from Carazor included as part of the Support Services but excluding new versions of the Software or upgrades equivalent to new versions) connected with the Software promptly (and in any event within 4 weeks) after the release of such updates from time to time.
  • 3. All support calls must be opened with Carazor through any of the user interfaces listed below. Carazor shall not be liable whatsoever for any failure to meet any applicable service levels in the event that requests for Support Services are submitted through any other medium or in any other manner.
    • 1. Support calls can be placed to the Support Services help desk by e-mail at [email protected] respectively.
    • 2. Through the Carazor nominated Customer account support executive from time to time, by phone or in regular account meetings.
  • 4. Where remote diagnosis and fault correction is considered by Carazor to be required in order for Carazor to fulfill its obligations then Carazor shall obtain the Customer’s consent to access the Customer’s computing systems in advance of providing such diagnosis or correction.
• 14. SERVICE LEVELS
  • 1. Carazor will use reasonable endeavours to respond to all correctly logged issues within Service Levels for the relevant Support Service request (classified pursuant to the descriptions set out in Schedule 1). Service Levels are measured from the time at which the Customer has provided all information reasonably required, pursuant to the Support Service call procedure set out in Schedule 1.
  • 2. Support Service request classification may vary form the time it is initially logged to reflect changes in circumstances. The classification and reclassification level off all cases shall be at the discretion of Carazor.
• 15. SERVICE CREDITS
  • 1. The Customer will be entitled to Service Credits in accordance with Schedule 1.
• 16. DISASTER RECOVERY
  • 1. Carazor shall maintain a Business Continuity Plan, such plan to be updated in line with Carazor’ infrastructure improvements and risk assessments and based on the principles described in paragraph 4 of Schedule 1, aimed at ensuring that the Service continue to function in the event of a Disaster. Such plan shall cover the provision of staff responsible for specific tasks, maintaining essential operations and systems, actions required to re-start operations, emergency data processing arrangements, backup requirements, hardware requirements and the means and methods of keeping staff and Customers informed of arrangements and developments. In particular, Carazor shall:
    • 1. Provide against single points of failure in its operating systems;
    • 2. Provide for backup of databases and servers at least daily;
    • 3. Provide for data stored on Carazor servers to be replicated between servers and data centre’s (and Carazor will use reasonable endeavours to ensure high availability systems are used throughout the Subscription Term in order to facilitate continuous access to systems and data).

  • PART C: GENERAL TERMS

• 17. CHARGES AND PAYMENT
  • 1. Customer shall pay the Fees to Carazor in accordance with this clause 17 and the Order Confirmation Form.
  • 2. Carazor shall invoice Customer:
    • 1. on the Effective Date for the Fees payable in respect of the services to be provided during the first calendar month of the Initial Subscription Term; and
    • 2. thereafter, subject to clause 22.1, on or around the first day of each calendar month for the Services to be provided during that calendar month, and Customer shall pay each invoice by the end of the month in which that invoice is received.
  • 3. If Carazor has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Carazor:
    • 1. Carazor may, without liability to Customer, disable Customer’s password, user account and access to all or part of the Services or Software and Carazor shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
    • 2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank Of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.

  • 4. All amounts and fees stated or referred to in this Agreement:

    • 1. shall be payable in pounds sterling;
    • 2. are, subject to clause 21.4.2, non-cancellable and non-refundable (and in the case of Carazor providing Software Customer acknowledges and agrees that the Services will commence on the date the Software is provided);
    • 3. are exclusive of value added tax and all other local sales taxes, which shall be added to Carazor invoice(s) at the appropriate rate.
  • 5. Carazor shall be entitled to increase any Fees at the start of each Renewal Period upon 90 days’ prior notice to Customer and the Order Confirmation Form shall be deemed to have been amended accordingly.
• 18. PROPRIETARY RIGHTS
  • 1. Subject to Clause 18.3 Customer acknowledges and agrees that Carazor and/or its licensors own all Intellectual Property Rights in the Services the Software and the Documentation. Except as expressly stated herein, this Agreement does not grant Customer any rights to, or in, any Intellectual Property Rights in respect of the Services, Software or the Documentation.
  • 2. Carazor confirms that it has all the rights in relation to the Services, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
  • 3. Any materials developed prior to the Effective Date and provided or made available by a party to the other party pursuant to this Agreement are and shall remain the property of that party (or its third party licensors) and, except as expressly provided in this Clause 18, the other party will not obtain any right, title, or interest therein.
  • 4. Subject to Customer purchasing User Subscriptions in accordance with clause 4.3 and clause 17.1, the restrictions set out in clause 3 and the other terms and conditions of this Agreement, Carazor hereby grants to Customer a non-exclusive, non-transferable, non-sub licensable right to:
    • 1. load the Software onto and store and run it on appropriate equipment, to use any associated documentation in conjunction with the use of the Software and to possess the media upon which the Software is stored and delivered to the Customer for its internal data processing requirements only; and
    • 2. permit Authorised Users to use the Services, the Content, the Software and the Documentation and any other proprietary information provided as part of the Services during the Subscription Term solely for the Customer’s online business operations.
  • 5. The Client shall notify Carazor immediately if it becomes aware of any unauthorised use of the whole or part of the Services, and Content, Software or Documentation by any person. The Customer permits Carazor to check the use of Content, Software or Documentation by it at reasonable times for that purpose and Carazor, its employees and agents may enter the Customer’s premises.
• 19. CONFIDENTIALITY
  • 1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that is or becomes publicly known other than through any act or omission of the receiving party; was in the other party’s lawful possession before the disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; is independently developed by the receiving party, which independent development can be shown by written evidence; or is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
  • 2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the performance of this Agreement.
  • 3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Carazor’ Confidential Information.
  • 4. The Customer hereby consents to Carazor including the Customer’s name in its published customer list for publicity purposes. Save the foregoing, neither party may make any public statement regarding the relationship contemplated by this Agreement, without the other party’s prior written consent.
  • 5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
  • 6. This clause 19 shall survive termination of this Agreement, however arising.
• 20. WARRANTY AND INDEMNITY
  • 1. Save as expressly set out in this Agreement, the Services are provided “as is” without any warranty of any kind either express or implied, including the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement.
  • 2. Save as otherwise expressly provided in this Agreement, Carazor does not warrant that the Services will be error-free or that these errors will be corrected and to the extent permitted by applicable law Customer is solely responsible for all costs and expenses associated with rectification , repair or damage to Customer’s property caused by any errors in connection with the Services.
  • 3. Carazor may create and release updates and upgrades and new versions of the Software from time to time and although Carazor has no obligation to create or notify Customer of any such releases, any created will be made available at www.Carazor.co.uk. Updates and upgrades to the Software which correct faults or add minor functionality will be included in the Subscription Fee for the Software,. However Carazor reserves the right to charge additional Fees for new versions of such materials which contain such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product, or for upgrades or updates required to be created specifically for individual customers using customized or bespoke versions of the Software.
  • 4. Notwithstanding clause 20.3, unless no updates, upgrades or new versions have been released by Carazor during the applicable 12 month period, Carazor reserves the right to stop providing any support services, including releasing future updates and upgrades and ensur
  ing compatibility of future functionality, in connection with versions of the Software which are older than 12 months old.
  • 5. The Customer acknowledges that the Services have not been developed to meet the Customer’s individual requirements and that it is therefore the Customer’s responsibility to ensure that the facilities and functions of the Services meet the Customer’s requirements prior to entering into this Agreement.
  • 6. Customer shall defend, indemnify and hold harmless Carazor against Liabilities incurred by Carazor arising out of or in connection with Customer’s use of the Services, Content and/or Documentation, otherwise than in accordance with the terms of this Agreement provided that:
    • 1. Customer is given prompt notice of any such claim;
    • 2. Carazor provides reasonable co-operation to Customer in the defence and settlement of such claim, at Customer expense; and
    • 3. Customer is given sole authority to defend or settle the claim.
  • 7. Carazor shall, subject to clause 20.9 and clause 21.5, defend Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Customer for any amounts awarded in judgment or settlement of such claims, provided that:
    • 1. Carazor is given prompt notice of any such claim;
    • 2. Customer provides reasonable co-operation to Carazor in the defence and settlement of such claim, at Carazor expense; and
    • 3. Carazor is given sole authority to defend or settle the claim.
  • 8. In the defence or settlement of any claim, Carazor may procure the right for Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 5 Business Days’ notice to Customer without any additional liability or obligation to pay liquidated damages or other additional Liabilities to Customer.
  • 9. The foregoing states Customer’s sole and exclusive rights and remedies, and Carazor (including Carazor employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
• 21. LIMITATION OF LIABILITY
  • 1. This clause 21 sets out the entire financial liability of Carazor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of:
    • 1. any breach of this Agreement;
    • 2. any use made by Customer of the Services and Documentation or any part of them; and
    • 3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

  • 2. Except as expressly and specifically provided in this Agreement:

    • 1. Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by Customer, and for conclusions drawn from such use. Carazor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Carazor by Customer in connection with the Services, or any actions taken by Carazor at the Customer’s direction;
    • 2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

  • 3. Nothing in this Agreement excludes the liability of Carazor:

    • 1. for death or personal injury caused by Carazor negligence; or
    • 2. for fraud or fraudulent misrepresentation.

  • 4. Subject to clause 21.2 and clause 21.3:

    • 1. Carazor shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
    • 2. Carazor total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

  • 5. In no event shall Carazor, its employees, agents and sub-contractors be liable to Customer in relation to a third party Intellectual Property Rights claim to the extent that the alleged infringement is based on:

    • 1. a modification of the Services, Content or Documentation by anyone other than Carazor; or
    • 2. Customer’s use of the Services, Content or Documentation in a manner contrary to the instructions given by Carazor; or
    • 3. Customer’s use of the Services, Content or Documentation after notice of the alleged or actual infringement from Carazor or any
    appropriate authority.
• 22. TERM AND TERMINATION
  • 1. This Agreement shall, unless otherwise terminated as provided in this clause 22, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
    • 1. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
    • 2. otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
  • 2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
    • 1. the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
    • 2. an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party or the other party ceases, or threatens to cease, to trade or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder or a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets or the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or the other party takes or suffers any similar or analogous action as set out in this clause (b) in any jurisdiction in consequence of debt.
  • 3. Carazor may terminate this Agreement by giving 90 days written notice to the Customer in the event of non payment the Customer shall be required to pay all outstanding and future payments due under the Agreement.

  • 4. On termination of this Agreement for any reason:

    • 1. all licences granted under this Agreement shall immediately terminate;
    • 2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
    • 3. the Customer shall uninstall the Software and return or destroy (subject to Carazor’ written instruction) all of Carazor Confidential Information;
    • 4. Carazor may destroy or otherwise dispose of any of the Customer Data in its possession unless Carazor receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to Customer of the then most recent back-up of the Customer Data. Carazor shall use reasonable commercial endeavours to deliver the back-up to Customer within 30 days of its receipt of such a written request, provided that Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Customer shall pay all reasonable expenses incurred by Carazor in returning or disposing of Customer Data; and
    • 5. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
• 23. FORCE MAJEURE
  • 1. Carazor shall have no liability to Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Carazor or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, lightning, or default Carazor or sub-contractors, provided that Customer is notified of such an event and its expected duration.
• 24. GENERAL
  • 1. Customer shall not, without the prior written consent of Carazor, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Carazor may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
  • 2. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in this Agreement.
  • 3. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
  • 4. No waiver of any right under this Agreement shall be effective unless it is expressly stated to be a waiver and is communicated to the other party in writing.
  • 5. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
  • 6. If any term, condition or provision (or part thereof) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid and in force to the fullest extent permitted by law.
  • 7. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
  • 8. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
  • 9. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
  • 10. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts.
  • 11. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
  • 12. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

• 1. Carazor Hosting Architecture and Recovery Profile

  • 1. Carazor Business Continuity PlanningBusiness Continuity Planning for the Carazor Product Suite has been conducted to select a cost-effective strategy for restarting operations in the event of a disaster and to identify which operations and supporting activities need to be restarted after a disaster, the maximum acceptable time limits by which they must restart and the resources needed to restart them. The key metrics defined by the planning are the recovery Point Objective (RPO) and the Recovery Time Objective (RTO).
    • The Recovery Time Objective (RTO) defines the target resolution time of an outage.
    • The Recovery Point Objective (RPO) defines the target point in time to recover data to in the event of an outage.

    For the purpose of this document a disaster is an incident or event which:

    • threatens full and total system outage or total workflow interruption to multiple users; and
    • requires special measures to be taken to restore services back to normal

    Carazor Business Continuity Plan (BCP) is continually updated in line with infrastructure improvements, risk assessments, ensuring all aspects of the service are capable of functioning in the midst of disruptive events, the planned actions to be taken following a disaster scenario, the staff responsible for specific tasks, essential operations and systems, actions required to re-start operations, emergency data processing arrangements, backup requirements, hardware requirements and the means and methods of keeping staff and clients informed of arrangements and developments.

  • 2. Carazor Disaster Recovery PlanningThe RTO and RPO metrics defined in the BCP have been mapped on to the Carazor infrastructure design to ensure the most suitable recovery strategy for each system is implemented to meet those metrics with the best possible balance of Cost, Risk and Quality of Service. The Infrastructure schematic and design is outlined in the next section, the core principles of the design being that:

    • RPO and RTO targets are achievable and tested
    • There should be no single point of failure in any systems
    • Backup Snap Shots of Databases and Servers are taken throughout the day
    • Data is replicated between Servers and Data Centre’s for full redundancy
    • High Availability systems with both data and systems replicated between servers and Data Centre’s are maximized to enable continuous access to systems and data

  • 3. Carazor RTO & RPO Service Level ObjectivesCarazor operates with the following Service Level objectives for Carazor.

    The Recovery Time Objective (RTO) defines the target resolution time of an outage.

    The Recovery Point Objective (RPO) defines the target point in time to recover data to in the event of an outage.

    Carazor – RTO & RPO Service Level and attributes
    Category	Service Level Agreement	Release and Implementation
    Policy	Operational Recovery Time Objective	2 Hours
    Policy	Operational Recovery Point Objective	24 Hours
    Quality of Service	Data Age at Point of Recovery	24 Hours
    Quality of Service	Processing Power in DR	100%
    Criticality & Priority	Precedence in Recovery	Criticality 1

• 2. Uptime Service Level Agreement
  • 1. Carazor Overall Uptime Service Level AgreementCarazor provide the following Service Level Agreement for the provision of Network and Power:

    Carazor – Overall Uptime Service Level Agreement
    Uptime Per Month	99.5%

    Start Time

    The Outage Incident Start time of a Service being unavailable shall be defined and measured from the time a PING command is unavailable and the fault is detected by us or is reported to our Support Desk and a support call ticket has been originated.

    End Time

    The Outage Incident End time of the period of unavailability shall be deemed as the time at which the service can be demonstrated to be available by a PING command or that the support call ticket has been resolved.

    Total Outage Time

    The Total Outage Period shall be the period, or sum of multiple periods as applicable within any calendar (excluding any period of planned downtime) from the Outage Incident Start time to the Outage Incident End time, each as outlined above.

• 3. Support Levels

  • 1. Carazor Support Hours of Coverage – HostingThe hours of coverage are 24x7x365. Please refer to the operational recovery objectives in the previous section.Every support call opened with Carazor Support Services will follow a consistent incident management process

    The following Support Service Level Agreements apply to correctly logged support requests

    Response	Confirmation of Time to Resolve/Plan	Release and Implementation
    < 2 Hrs	< 2 Hrs	Dependant on release date and implementation plan

    Request

    This covers any request for work to make functional or graphical changes or enhance your platform and service that can be achieved within the software framework. This includes, but is not limited to; graphics for offers, implementation of available functionality, layout changes, addition of new sections or franchises, feed import/exports and the creation or coordination of campaigns.

    Bug

    Service interruptions or software errors where an element of the site is not performing as specified and is preventing your service or platform from functioning as it was designed, or where system errors have (or are likely to) cause(d) a service interruption.

    Feature Request

    A Feature Request should be raised when a requirement is not possible within the software framework.

    Severity	Characteristic
    Critical	System outage or total workflow interruption to multiple users. i.e. Complete site outage or issues impacting functionality of stock, enquiry points (including forms and phone) and search.
    Medium	Non-critical problem or fault affecting partial workflows of multiple or single users.
    Low	All “Requests” and minor technical problems that have low or zero workflow impact to users.

  • 2. Carazor Support Hours of Coverage – SoftwareCarazor Support Services for software requests and support are available during the following hours (all times are GMT and exclude public and bank holidays).

    Day	Coverage
    Monday to Friday	09:00 to 17:30
    Saturday & Sunday	Closed