Coyote legal terms
This is version 23.03, updated on 10th November 2023.
1. Definitions and interpretation
1.1 The following terms contained in the Agreement shall have the meanings set out below, unless the context otherwise requires:
“Additional Fees” means the fees for any Additional Services provided by Coyote charged on a time and materials basis in accordance with the Rate Card unless agreed otherwise in a Statement of Work, estimates of which are set out in the Order Form and/or relevant Statement of Work (as applicable);
“Additional Services” means any additional services not provided as part of the Implementation Services or On-Going Services that the Customer requires Coyote to provide and that the Parties agree should be subject to the provisions of the Agreement, such as consultancy, project management or other related services;
“Affected Party” has the meaning given in Clause 16.2;
“Affiliate” includes in relation to either Party each and any subsidiary or holding company of that Party and each and any subsidiary of a holding company of that Party;
“Agreed Downtime” has the meaning given in Schedule 2;
“Agreement” means together the Order Form, these Legal Terms, any Statements of Work and any other order for services that the Parties agree shall be subject to these Legal Terms (as varied from time to time in accordance with these Legal Terms);
“Applicable Laws” means all applicable laws, statutes, rules and regulation of any relevant jurisdiction where the Software and Services are provided from, as amended and in force from time to time;
“Asset Record” means an individual record relating to an asset which is either a new introduction, new market data in relation to the relevant asset and/or comparable market data in relation to the relevant asset, or in the case of a managed asset, an individual record relating to an asset under management, and “Asset Records” shall be construed accordingly;
“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised to use the Software up to the maximum number set out in the Order Form (if any);
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Change Order” has the meaning given in Clause 14.1;
“Confidential Information” means information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, but not including information to the extent it: (a) was already known to the receiving Party on a non-confidential basis at the time of the disclosure; (b) was, is or becomes available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not under any obligations of confidentiality in relation to the information; or (c) is in, or comes into, the public domain other than by wrongful use of or disclosure by the receiving Party;
“Control” has the meaning given to it in section 1124 of the Corporation Tax Act 2010, and the expression “change of Control” shall be construed accordingly;
“Coyote” means the company defined as such in the Order Form;
“Coyote Personnel” means those officers, contractors, employees, consultants, agents and representatives of Coyote that are actually providing the Services;
“CoyotePLUS Services” has the meaning set out in the Order Form;
“CPI plus 5%” has the meaning given in Clause 7.5;
“Customer” means the customer whose details are set out in the Order Form;
“Customer Default” has the meaning given in Clause 6.5;
“Customer Materials” means any images, plans, data, materials or documentation that are: supplied to Coyote by or on behalf of the Customer, uploaded and/or stored on the Software by or on behalf of the Customer, or which Coyote is required to generate, process, store or transmit pursuant to the Agreement (including any data uploaded or processed in conjunction with use of the Software), and including Asset Records;
“Data Protection Legislation” means all data protection and privacy legislation in force from time to time in the UK and EU, if and to the extent applicable to Coyote’s Processing of Personal Data pursuant to the Agreement, including (as applicable) the EU GDPR, the UK GDPR, the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended;
“Defect” means any non-conformity of the Software with the Functional Specification;
“Deliverable” means any specific output of the Services to be provided by Coyote or Coyote’s Personnel to the Customer (as specified in a Statement of Work and/or the Order Form (as applicable)) and any other documents, products and materials provided by Coyote to the Customer in relation to the Services;
“Effective Date” has the meaning set out in the Order Form;
“EU GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679;
“Fees” means together the Implementation Fees, the On-Going Fees and any Additional Fees;
“Force Majeure Event” has the meaning given in Clause 16.1;
“Functional Specification” means a SaaS web based portal that tracks real estate throughout its lifecycle from introduction through acquisition, asset management and disposal. It allows the centralisation of data from multiple disparate data sources into a single source of truth. Coyote also adds workflow, document management, task and reporting functionality;
“Implementation Fees” means the fees payable by the Customer for the Implementation Services, the amount of which is set out in the Order Form;
“Implementation Services” has the meaning set out in the Order Form;
“Initial Term” has the meaning set out in the Order Form;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Legal Terms” means these terms and conditions that the Parties agree shall apply to all Software and Services provided by Coyote under the Agreement;
“Losses” means claims, demands, actions, awards, costs, expenses, damages and losses (including any interest, fines and reasonable legal and other professional costs and expenses);
“On-Going Fees” means the fees payable by the Customer on an annual basis for the On-Going Services, the amount of which as at the Effective Date is set out in the Order Form;
“On-Going Services” has the meaning set out in the Order Form;
“Order Form” means the document entitled “Order Form”, and any other commercial terms, schedules or service description that the Parties agree should be added to the Agreement at a later date from time to time;
“Party” means Coyote or the Customer, and “Parties” shall be construed accordingly;
“Rate Card” means a table outlining the applicable hourly rate or daily rate for the provision of Additional Services by Coyote Personnel and/or any 3rd parties. For clarity, the current rate card is attached at Schedule 3;
“Renewal Term” has the meaning set out in Clause 3.2;
“Scheduled Maintenance” has the meaning given in Schedule 2;
“Services” means the Implementation Services, the On-Going Services and any Additional Services;
“Software” means the software application known as “Coyote” developed, owned and maintained by Coyote (including any associated documentation provided by Coyote) and that is provided to the Customer remotely as a service via the internet, as more fully described in the Functional Specification;
“Standard Contractual Clauses” means (a) if the EU GDPR applies, the European Commission’s Standard Contractual Clauses for the transfer of personal data from the European Union to processors established in third countries, as annexed to Commission Implementing Decision (EU) 2021/914 of 4 June 2021, or such alternative clauses as may be approved by the European Commission from time to time; or (b) if UK GDPR applies (i) the European Commission’s Standard Contractual Clauses for the transfer of personal data from the European Union to processors established in third countries, as set out in the Annex of Commission Implementing Decision (EU) 2021/914 of 4 June 2021 together with the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses, or (ii) the standalone ‘International Data Transfer Agreement’ issued by the Commissioner, or (iii) any such other clauses or transfer agreement as may be approved for use in the UK from time to time;
“Standard Support Hours” means the hours of 9:00 a.m. to 5:30 p.m. (UK time) on Business Days or such other hours as may be agreed in writing from time to time between the Parties in relation to any SoW;
“Statement of Work” or “SoW” means a statement of work agreed by the Parties under the Agreement (which the Parties intend shall be based on the template set out in Schedule I (SoW Template));
“Support and Maintenance Services” means Coyote’s standard support and maintenance service as more fully described in Part 1 of Schedule 2;
“Target Availability” has the meaning given in Schedule 2;
“Third Party Terms” has the meaning given in Clause 8.9;
“Term” means the Initial Term together with all Renewal Terms;
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018;
“VAT” has the meaning given in Clause 7.4; and
“Virus” means anything or device (including any software, code, file or programme) which may: (a) 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; (b) 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 (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or device.
1.2 Clause headings in these Legal Terms shall not affect the interpretation of the Agreement.
1.3 References to Clauses and Schedules are to the clauses and schedules of these Legal Terms.
1.4 Holding company and subsidiary have the meanings given to those terms in section 1159 of the Companies Act 2006.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes any subordinate legislation made from time to time under that statute or statutory provision.
1.6 Unless otherwise stated, time shall not be of the essence for the performance of any obligation by Coyote.
1.7 Any phrase introduced by 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.
1.8 A reference to writing or written includes e-mails.
2. Sow procedure
2.1 Where Additional Services and/or CoyotePLUS Services (unless CoyotePLUS Services form part of the On-Going Services as at the Effective Date) are provided to the Customer or its Affiliates such Additional Services and/or CoyotePLUS Services shall be provided in accordance with a SoW agreed between the Parties from time to time.
2.2 Once a SoW has been agreed and signed by the Parties, it shall be deemed to be a part of the Agreement, it shall automatically incorporate the relevant terms and provisions of the Order Form and these Legal Terms and shall not form a separate contract to the Agreement.
2.3 Where CoyotePLUS Services are provided, such services are provided subject to the additional terms set out in Schedule 4.
2.4 The Parties agree that the Agreement shall be deemed to apply to any services provided prior to the Effective Date and, upon execution, the Agreement shall supersede and extinguish any letters of intent or instructions to proceed issued in respect thereof, whether given orally or in writing.
3.1 The Agreement shall continue in force for the Initial Term (except as expressly provided otherwise).
3.2 On the date of expiry of the Initial Term and each anniversary of such date, the Agreement shall automatically renew for subsequent periods of 12 months (each such 12 month period being a “Renewal Term”) until terminated by either Party on giving not less than 60 days’ written notice (such notice to expire no earlier than the last day of the Initial Term or any Renewal Term as applicable).
3.3 The Parties shall not enter into any further Statements of Work after the date on which notice to terminate is given under Clause 3.2.
4. License terms
4.1 In consideration for the payment of the On-Going Fees to Coyote, Coyote hereby grants the Customer and its Affiliates a non-exclusive, non-transferable (other than as provided for in the Agreement) licence for the Term for the Authorised Users to use the Software and the Deliverables, and to receive the Services, subject to the terms of the Agreement.
4.2 The Customer shall, and shall procure that its Affiliates shall:
4.2.2 not sub-license the Software or the Deliverables without Coyote’s prior written consent;
4.2.3 not translate, adapt, vary or modify the Software or the Deliverables in any way without Coyote’s prior written consent;
4.2.4 not allow Authorised Users to share access credentials or in any way permit access to the Software or the Deliverables, or receipt of the Services unless the Customer has notified Coyote of a reassignment of an Authorised Users account in its entirety to another individual, in which case the prior Authorised User shall no longer have any right to access or to use the Software or the Deliverables, or to receive the Services.;
4.2.5 permit Coyote to audit the Services in order to establish full details of any Authorised Users (or unauthorised users). For clarity, if such audits reveal that any unauthorised users have accessed the Software, then without prejudice to Coyote’s other rights, the Customer shall promptly disable such access and shall pay to Coyote an amount equal to any underpayment of fees at Coyote’s then headline rates;
4.2.6 put into place and maintain reasonable security measures to safeguard the Software and the Deliverables from access or use by any unauthorised person(s) in accordance with generally accepted security practices;
4.2.7 be responsible for the input and transfer of all data for use with the Software;
4.2.8 not access, store, distribute or transmit any Viruses, or any material during the course of its or their use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property; and Coyote reserves the right, without liability or prejudice to its other rights, to disable the Customer’s or its Affiliates’ access to any material that breaches the provisions of this Clause; and
4.2.9 not attempt to:
(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
(b) de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except to the extent permitted by Applicable Laws; or
(c) access all or any part of the Software in order to build a product or service which competes with the Software and/or Services.
5.1 Coyote shall use reasonable endeavours to:
5.1.1 provide the Services to the Customer with reasonable skill and care;
5.1.2 meet any performance dates specifically agreed in writing with the Customer;
5.1.3 ensure that the Software is available in accordance with the Target Availability commitment set out in Schedule 2, subject to any emergency maintenance, Agreed Downtime, and the other terms set out in Schedule 2. For clarity, Coyote shall use reasonable endeavours to give as much notice to the Customer as is practicable in advance of any Scheduled Maintenance; and
5.1.4 correct any Defects with the Software as part of the Support and Maintenance Services. For clarity, Coyote shall not be liable to correct any Defect if the Defect has arisen from a breach of the Agreement by the Customer (including use of the Software with equipment, programs or services not authorised or approved in writing by Coyote).
5.2 Coyote warrants that:
5.2.1 it shall comply with all Applicable Laws when performing its obligations under the Agreement;
5.2.2 (to the extent not listed as an obligation of the Customer), it shall maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement; and
5.2.3 in performing its obligations under the Agreement, it will apply such time, attention, resources, trained personnel and skills as it deems necessary for the due and proper performance of the Services.
5.3 Where Coyote provides a Deliverable under a Statement of Work and/or the Order Form (including the Software on completion of the Implementation Services), the Customer shall promptly inspect and test that Deliverable to ensure that it materially conforms to the agreed acceptance or other criteria set out in the Agreement. If the Customer reasonably considers that the Deliverable does not materially conform to the agreed criteria, then the Customer shall notify Coyote within seven days of delivery of the relevant Deliverable and then Coyote shall use its reasonable endeavours to remedy the issue. If the Customer does not notify Coyote of any issue within seven days of delivery then the Deliverable shall be deemed to have been accepted by the Customer.
5.4 Coyote shall provide Support and Maintenance Services in accordance with the Agreement and Part 1 of Schedule 2.
5.5 From time to time, the Customer may require Coyote to provide Additional Services. Subject to the Parties agreeing the scope of such Additional Services, such Additional Services shall be provided on a time and materials basis, the charges for which shall be payable by the Customer, in accordance with the then current Rate Card (unless agreed otherwise).
5.6 Coyote agrees that it will not undertake or perform any chargeable services, including Additional Services, without either:
5.6.1 such work being agreed in a SoW; or
5.6.2 the prior written approval of the Customer.
5.7 Each Party warrants that it has the power and authority to enter into and perform the Agreement, which constitutes valid and binding obligations on it in accordance with its terms.
5.8 Coyote does not warrant that the Customer’s use of the Services will be uninterrupted or error-free or that the Services and/or the information obtained by the Customer through the Services will meet the Customer’s requirements. Coyote 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 the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. As a result, except as stated in the Agreement otherwise, Coyote excludes (to the fullest extent permitted by Applicable Laws) all conditions, warranties or other terms which might have effect between the Parties or be implied or incorporated into the Agreement, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.
6. Customer’s obligations
6.1 The Customer shall:
6.1.1 co-operate with Coyote and Coyote’s Personnel in all matters relating to the Agreement;
6.1.2 provide Coyote with all documents, information, items and materials in any form (whether owned by the Customer or a third party) required by Coyote to perform the Services in a timely manner, and ensure that these are accurate and complete;
6.1.3 ensure any Statement of Work meets its requirements;
6.1.4 obtain and maintain all necessary licences and consents as required to enable Coyote to perform its obligations under the Order Form and any Statement of Work;
6.1.5 comply with all Applicable Laws;
6.1.6 ensure that all Authorised Users use the software and the Services in accordance with the terms and conditions of the Agreement and any other instructions reasonably given by Coyote;
6.1.7 ensure that its network and systems comply with the relevant specifications provided by Coyote from time to time;
6.1.8 be solely responsible for (a) procuring and maintaining its network connections and telecommunications links from its systems to Coyote’s data centres, and (b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
6.1.9 regularly back up all existing data, software and programs that Coyote has access to or that may be impacted by the delivery of the Services or use of the Software;
6.1.10 not, without the prior written consent of Coyote, at any time from the Effective Date to the expiry of six months after termination or expiry of the Agreement, attempt to solicit or entice away from Coyote any Coyote Personnel or persons who were in the previous six months Coyote Personnel, except where such Coyote Personnel or persons have responded to a general advertising campaign for the relevant role; and
6.1.11 comply with any additional responsibilities of the Customer as set out in the Order Form and the relevant Statement of Work.
6.2 The Customer acknowledges that Coyote may access the information technology systems of the Customer to the extent required to perform its obligations under the Order Form and a Statement of Work.
6.3 When accessing the information technology systems of the Customer, Coyote shall use reasonable endeavours to comply with all written policies, standards and procedures relating to the security of the relevant systems of which Coyote is notified in writing, from time to time and to the extent these are reasonable.
6.4 The Customer warrants that Coyote’s use and/or storage of the Customer Materials does not infringe the rights (including Intellectual Property Rights) of any third party and that the Customer has all necessary permits, approvals, consents and licences for Coyote’s use and/or storage of the Customer Materials in accordance with the Agreement.
6.5 Without prejudice to any other right or remedy Coyote may have, if Coyote’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees (including a failure to comply with any of its obligations under Clause 6.1 or a Statement of Work) (a “Customer Default“) then:
6.5.1 Coyote and Coyote’s Personnel shall use reasonable endeavours to mitigate the impact of the Customer Default;
6.5.2 Coyote shall not be responsible for any failure to carry out the relevant obligations and shall be allowed an extension of time to perform its obligations; and
6.5.3 the Customer shall reimburse Coyote for all reasonable additional amounts incurred by Coyote as a result of the Customer Default.
6.6 Coyote shall have the right to use the Customer’s name and logos in connection with its marketing campaigns and PR activities, provided that any press releases that Coyote issues shall be mutually agreed between the Parties prior to their issue.
7. Fees and payment terms
7.1 The Customer shall pay Coyote the Fees in respect of the delivery of the Services.
7.2 Coyote shall invoice the Customer for the Fees as set out in the Order Form and/or the relevant SoW (as applicable)(unless agreed otherwise between the Parties).
7.3 The Customer shall pay each invoice submitted by Coyote:
7.3.1 within thirty (30) days of the date of the invoice; and
7.3.2 in full and in cleared funds via bank transfer to a bank account nominated in writing by Coyote.
7.4 All amounts payable by the Customer under the Agreement are exclusive of value added tax, or any locally applicable equivalent sales tax or levies payable as a result of providing the Services (“VAT”). The Customer shall pay any such VAT arising from Coyote providing the Services on receipt of a valid invoice from Coyote as and when due.
7.5 Coyote has the right to increase the rates set out in the Rate Card from time to time (on prior written notice to the Customer) to reflect any reasonable and demonstrable increases in Coyote’s staff costs. In addition, at the beginning of each Renewal Term, the On-Going Fees will increase by an amount equal to the percentage increase in the Consumer Price Index Rate in the 12 months preceding the relevant Renewal Term plus 5% (“CPI plus 5%”). Coyote may review and increase the Fees by more than CPI plus 5% provided that it shall give the Customer at least 90 days’ prior written notice of the increase and that such increase shall not take effect before the end of the then Initial Term or Renewal Term (as applicable).
7.6 If either Party disputes its obligation to pay any sum due under the Agreement, that Party shall promptly notify the other Party of such dispute and may withhold payment of such disputed sum until such dispute is resolved. In the event that such dispute is not resolved within 45 days of the sums becoming due for payment, the Parties shall revert to the dispute resolution procedure set out in Clause 15.
7.7 If a Party fails to make any payment due under the Agreement by the due date for payment, then interest on the overdue amount shall accrue and be compounded on a daily basis from the due date until the payment date (whether before or after judgment) at the rate of four per cent (4%) per annum above Barclays Bank Plc’s base rate from time to time. Where the late paying Party is the Customer, then, without prejudice to Coyote’s other rights or remedies, Coyote may suspend all or part of the Services until payment has been made in full.
7.8 The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Coyote may at any time, without limiting its other rights or remedies, set off, deduct or withhold from any liability owed to the Customer under or in connection with the Agreement (whether present, future, actual or contingent, liquidated or unliquidated, disputed or undisputed) amounts due for payment by the Customer under the Agreement.
8. Intellectual property rights
8.1 Nothing in the Agreement shall provide the Customer with any right, title or interest in or to the Intellectual Property Rights of Coyote or its licensors unless stated otherwise.
8.2 The Customer acknowledges and agrees that all Intellectual Property Rights in the Software, or that are created pursuant to the Services or contained within any Deliverables, are or shall be owned by Coyote (or its licensors). To the extent that any Intellectual Property Rights in the Deliverables have passed to the Customer, the Customer hereby assigns absolutely to Coyote (including by way of an assignment of future Intellectual Property Rights) all Intellectual Property Rights in the Deliverables to Coyote (and unconditionally and irrevocably waives all moral rights that exist or may exist in the Deliverables). To the extent Coyote deems it necessary, the Customer shall execute any documents required by Coyote to perfect such assignment.
8.3 Ownership of the Customer Materials shall be vested in, and remain the property of, the Customer or its licensors.
8.4 Notwithstanding Clause 8.3, the Customer grants Coyote a perpetual, royalty-free, worldwide, non-exclusive licence to use the Customer Materials (i) to provide the Services to the Customer and (ii) provided that the Customer Materials are only used on an anonymised basis, for Coyote’s internal and external business and marketing purposes.
8.5 The Customer shall indemnify Coyote from and against all Losses incurred by Coyote or Coyote’s Personnel arising out of or in connection with any claim, demand or action alleging that Coyote’s use and/or storage of the Customer Materials has infringed the rights (including Intellectual Property Rights) of a third party provided that the claim, demand or action has not arisen from Coyote’s or Coyote’s Personnel’s breach of the Agreement.
8.6 Coyote shall indemnify the Customer from and against all Losses incurred by the Customer arising out of or in connection with any claim, demand or action alleging that the Software, Deliverables or the Services have infringed the rights (including Intellectual Property Rights) of a third party provided that the claim demand or action has not arisen from:
(a) the Customer’s or its personnel’s breach of the Agreement (including misuse or unauthorised modification of the Software or Deliverables);
(b) the combination of the Software or Deliverables with other materials or products not provided by Coyote (including the Customer Materials); or
(c) Coyote’s compliance with specifications provided by or instructions of the Customer.
8.7 Coyote’s liability under the indemnity in Clause 8.6 shall be subject to the following:
(a) the Customer promptly notifying Coyote of the claim demand or action;
(b) Coyote having the sole conduct of all negotiations and litigation and settlement arising from the claim demand or action;
(c) the Customer providing Coyote with all information and assistance reasonably required by Coyote; and
(d) the Customer making no admission in respect of the claim, demand or action.
8.8 The indemnities in Clauses 8.5 and 8.6 shall not apply to any claims that are brought more than one year after the circumstances giving rise to the claim have come, or should reasonably come, to the attention of the indemnified Party.
8.9 The Customer understands and agrees the Software, Deliverables and Services may be provided to the Customer subject to the relevant terms and conditions of third party providers (including third party end-user licensing agreements and service support agreements) (“Third Party Terms“) and that in such instances, the Customer’s use, enjoyment and receipt of such Software, Deliverables and Services will be governed by the Third Party Terms provided that Coyote has used reasonable endeavours to bring such Third Party Terms to the Customer’s attention in advance. The Customer is required to comply with and agree to such Third Party Terms prior to receipt of and use of the relevant Software, Deliverables and Services.
9. Data protection
9.1 In this Clause 9 (and elsewhere in these Legal Terms):
9.1.1 the terms “Controller“, “Data Subject“, “Processing“, “Processor“, “Personal Data Breach”, and “appropriate technical and organisational measures” bear the respective meanings given to them in the applicable Data Protection Legislation, and “Process” and “Processed” shall be construed accordingly;
9.1.2 “Personal Data” means any information relating to an identified or identifiable living individual that is Processed by Coyote on behalf of the Customer as a result of, or in connection with, the provision of the Software and/or Services under this Agreement; an identifiable living individual is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual;
9.1.3 “Domestic Law” means the law of the United Kingdom or a part of the United Kingdom;
9.1.4 “EU Law” means the law of the European Union or any member state of the European Union; and
9.1.5 “Sensitive Personal Data” refers to the special categories of Personal Data described as such in the applicable Data Protection Legislation.
9.2 Each Party shall comply with the requirements of the Data Protection Legislation in respect of the activities that are the subject of the Agreement and shall not knowingly do anything or permit anything to be done which might lead to a breach by the other Party of the Data Protection Legislation. This Clause 9 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.
9.3 The Parties acknowledge that for the purposes of the Data Protection Legislation the Customer is the Controller and Coyote is the Processor. The Data Processing Addendum attached to these Legal Terms sets out the scope, nature and purpose of Processing by Coyote, the duration of the Processing and the types of Personal Data and categories of Data Subject.
9.4 The Customer warrants, undertakes and represents that:
9.4.1 all Personal Data has been fairly and lawfully obtained (or may be collected by Coyote fairly and lawfully in accordance with its instructions);
9.4.2 it has the right to lawfully supply the Personal Data (including obtaining express consent from the relevant Data Subject to the Processing of the Personal Data in accordance with the Agreement (where necessary));
9.4.3 it will comply with the Data Protection Legislation (including ensuring that the instructions that it provides in relation to the processing and collecting of such Personal Data also complies with the Data Protection Legislation);
9.4.4 it will only supply, transfer to, or share with Coyote Personal Data as necessary for the provision of the Services, and in any case will not supply Coyote with any data relating to individual Data Subjects other than: name, email address, telephone number, IP Address, LinkedIn Profile URL, job title and employer without the prior written permission of Coyote (for the avoidance of doubt “supply” of Personal Data includes uploading any data or documents containing Personal Data to the Software); and
9.4.5 it will not supply, transfer to, or share with Coyote, any Sensitive Personal Data without the prior written permission of Coyote (for the avoidance of doubt “supply” of Sensitive Personal Data includes uploading any data or documents containing Sensitive Personal Data to the Software).
9.5 The Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Coyote and/or lawful collection of the Personal Data by Coyote on behalf of the Customer for the duration and purposes of the Agreement.
9.6 Without prejudice to the generality of Clause 9.2, Coyote shall, in relation to any Personal Data Processed in connection with the performance by Coyote of its obligations under the Agreement:
9.6.1 put in place and maintain appropriate technical and organisational measures against the accidental, unlawful or unauthorised processing, destruction, loss, damage or disclosure of that Personal Data appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
9.6.2 Process that Personal Data only on documented instructions from the Customer unless Coyote is required by Domestic Law or EU Law to otherwise process that Personal Data. Where Coyote is relying on Domestic Law or EU Law as the basis for Processing Personal Data, Coyote shall promptly notify the Customer of this before performing the Processing required by the Domestic Law or EU Law unless the Domestic Law prohibits Coyote from so notifying the Customer;
9.6.3 ensure that access to the Personal Data is limited to those employees or authorised subcontractors who need access in order to meet Coyote’s obligations under the Agreement and that all such employees and authorised subcontractors are informed of the confidential nature of the Personal Data and are obliged to keep the Personal Data confidential;
9.6.4 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject in relation to the Personal Data and in ensuring compliance with the Customer’s obligations in relation to the Personal Data under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, taking into account the nature of Processing and the information available to Coyote;
9.6.5 immediately inform the Customer if, in the opinion of Coyote, an instruction in relation to the Personal Data infringes the Data Protection Legislation; and,
9.6.6 at the Customer’s discretion, destroy or return all Personal Data or copies thereof on termination of the Agreement unless required by Domestic Law or EU Law to store the Personal Data.
9.7 Coyote may transfer the Personal Data outside of the UK and/or the European Economic Area provided that it fulfils its applicable obligations under the Data Protection Legislation including the following:
9.7.1 Coyote or the Customer has provided appropriate safeguards (as required by the Data Protection Legislation); and
9.7.2 the relevant Data Subject has enforceable rights and effective legal remedies.
9.8 Without prejudice to the generality of Clause 9.2, Coyote shall, in relation to any Personal Data Processed in connection with the performance by Coyote of its obligations under the Agreement, notify the Customer without undue delay on becoming aware of a Personal Data Breach.
9.9 Each Party shall:
9.9.1 maintain records of all Processing activities relating to any of the other Party’s personal data received, processed or generated in connection with the Agreement; and
9.9.2 promptly provide the other Party (and an independent auditor mandated by the Parties) with all reasonable access to such records, as well as any other information and materials to demonstrate its compliance with this Clause 9, provided that the Party requesting access gives the other Party reasonable prior notice of such audit and/or inspection, undertakes no more than one audit in any twelve month period and shall undertake such audit during normal business hours and in such fashion as to minimise any interruption to the other Party’s business.
9.10 The Customer hereby gives general consent to Coyote engaging third party data processors to carry out processing activities to fulfil the following functions:
9.10.1 Accounting Services;
9.10.2 Business, Performance & Usage Analytics;
9.10.3 Cloud Hosting;
9.10.4 Customer Relationship Management;
9.10.5 Customer Support;
9.10.6 Customer Surveys;
9.10.7 Data Integration;
9.10.8 Data Warehousing;
9.10.9 Document Management;
9.10.10 Email Services;
9.10.11 Mapping Services;
9.10.12 Product & Design Management.
9.11 Coyote confirms that it has entered or (as the case may be) will enter with the third-party Processors into a written agreement substantially on that third party’s standard terms of business and in any case which Coyote confirms reflect and will continue to reflect the requirements of the Data Protection Legislation (including the requirements under Article 28 (4) of UK GDPR). As between the Customer and Coyote, Coyote shall remain fully liable for all acts or omissions of any third-party Processor appointed by it pursuant to this Clause 9. Coyote may update its list of third party Processors from time to time. If Coyote proposes adding any new third party Processors to the list it shall notify the Customer in writing.
9.12 Where required by applicable Data Protection Legislation, Coyote shall enter into the relevant Standard Contractual Clauses with (i) any Sub-processor of Coyote that is authorised under this Agreement to Process Personal Data; and/or (ii) the Customer (as necessary).
9.13 The Parties agree that there may be changes to the Data Protection Legislation and therefore the Parties will negotiate in good faith any additional changes that are required to this Clause that are necessary as a result of such changes.
9.14 The Customer acknowledges that where the Customer provides or authorises the collection of Personal Data to or by Coyote under the Agreement, Coyote is reliant on the Customer for direction as to the extent to which Coyote is entitled to use and Process such Personal Data. The Customer warrants and represents to Coyote, as at the Effective Date, and on an ongoing basis during the Term, that Coyote has the right to Process the Personal Data provided to it by the Customer (including relating to Authorised Users, Personal Data about visitors, employees, agents and other occupiers of the Customer’s premises that are provided to Coyote) in order to ensure that Coyote can provide the Services and Software to the Customer. Consequently, Coyote will not be liable for any claim brought by a Data Subject arising from any act or omission by Coyote, to the extent that such act or omission resulted directly from the Customer’s instructions or any other breach by the Customer of the Data Protection Legislation.
10.1 Each Party undertakes that it shall not, at any time during the term of the Agreement and for a period of five years after termination of the Agreement, disclose the other Party’s Confidential Information, except as permitted by Clause 10.2.
10.2 Each Party may disclose the other Party’s Confidential Information:
10.2.1 to its Affiliates, employees, officers, representatives, consultants or advisers who need to know such information for the purposes of exercising the Party’s rights or carrying out its obligations under or in connection with the Agreement provided that the disclosing Party has ensured that its Affiliates, employees, officers, representatives, consultants or advisers to whom it discloses the other Party’s Confidential Information complies with this Clause 10; and
10.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing Party notifies the other Party as far in advance as reasonably possible (unless prevented from doing so by Applicable Laws).
10.3 Neither Party shall use the other Party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
11.1 Without affecting any other right or remedy available to it and notwithstanding a Party’s right to terminate pursuant to Clauses 3.2 and 16.4, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if:
11.1.1 the other Party commits a material breach of any term of the Agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
11.1.2 the other Party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
11.1.3 the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
11.1.4 the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
11.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
11.1.6 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company);
11.1.7 the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
11.1.8 a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
11.1.9 a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
11.1.10 any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.3 to clause 11.1.9 (inclusive); or
11.1.11 the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2 Without affecting any other right or remedy available to it, Coyote may terminate the Agreement (including any or all of the Statements of Work) with immediate effect by giving written notice to the Customer if:
11.2.1 the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment; or
11.2.2 there is a change of Control of the Customer that in Coyote’s reasonable opinion is likely to cause Coyote reputational harm or damage.
11.3 Where Coyote has the right to terminate the Agreement it may instead decide to partially terminate the Agreement instead so that certain Services or Statements of Work either are terminated or remain in force.
12. Consequences of termination
12.1 Except as provided otherwise, on termination or expiry of the Agreement for any reason:
12.1.1 all existing Statements of Work shall terminate automatically; and
12.1.2 the Customer shall immediately pay to Coyote all of Coyote’s outstanding unpaid invoices and interest and, in respect of any Deliverables and Services supplied but for which no invoice has been submitted, Coyote may submit an invoice, which shall be payable by the Customer immediately on receipt.
12.2 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
12.3 Should the Customer require any reasonable support or assistance after the Agreement terminates or expires then such support and assistance shall be provided by Coyote and chargeable on a time and materials basis in accordance with Coyote’s then applicable Rate Card, provided that Coyote shall not be obliged to provide such support and assistance if any amounts are owed to Coyote on termination or expiry.
13. Limitation of liability
13.1 Nothing in the Agreement shall limit or exclude a Party’s liability for:
13.1.1 death or personal injury caused by its negligence;
13.1.2 fraud or fraudulent misrepresentation;
13.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
13.1.4 (in the case of the Customer only) a breach by the Customer of its obligations under Clauses 8 and/or 9;
13.1.5 payment of any Fees due under the Agreement; or
13.1.6 any other liability which cannot be limited or excluded by Applicable Law.
13.2 Subject to Clause 13.1, Coyote shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement (including any SoW) for:
13.2.1 loss of profits or revenue;
13.2.2 loss of sales or business;
13.2.3 loss of agreements or contracts;
13.2.4 loss of anticipated savings;
13.2.5 loss of or damage to goodwill;
13.2.6 loss of use, corruption or recovery of software, data or information;
13.2.7 any costs of substitute goods, services or deliverables; or
13.2.8 any indirect or consequential loss.
13.3 Subject to Clause 13.1, Coyote’s total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement in any 12 month period shall be limited to 100% of the Fees actually received by Coyote in the 12 months preceding the relevant breach.
14. Change of control
14.1 Either Party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until an agreed change order has been signed by both Parties (a “Change Order“). A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
14.1.1 the provision of the Software and Services (as the case may be);
14.1.2 the Fees;
14.1.3 any agreed timetable for delivery; and
14.1.4 any of the other terms of the relevant Statement of Work and/or Order Form (as applicable).
14.2 If the Parties agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work and/or Order Form (as applicable).
14.3 The Parties will act in good faith when discussing and negotiating any Change Order.
14.4 The Parties shall act reasonably and promptly when considering any change to a Statement of Work and/or the Order Form (as applicable) that is required as a result of a change in Applicable Laws and, notwithstanding Clause 7.5, Coyote shall be free to adjust the Fees to reflect any reasonable and demonstrable increase in its own costs resulting from the change in Applicable Laws.
15. Multi-tiered dispute resolution procedure
15.1 Any dispute which may arise between the Parties concerning the Agreement shall be determined as follows:
15.1.1 the dispute shall first be referred to a director of Coyote and an authorised representative of the Customer who shall negotiate in good faith in an attempt to resolve the dispute as speedily as possible. If those negotiations do not result in a settlement of the dispute within 14 days of their commencement then the provisions of Clause 15.1.2 or 15.1.3 below (as appropriate) shall apply;
15.1.2 the Parties shall attempt to determine the dispute by mediation in accordance with the Centre for Dispute Resolution (CEDR) Model Mediation Procedure; and
15.1.3 if the Parties cannot resolve the dispute by mediation within 60 days of the date of the first mediation meeting, then either Party may apply to the courts of England and Wales who shall have exclusive jurisdiction to hear and determine any such unresolved dispute.
15.2 Nothing in Clause 15 shall prevent either Party from applying to the courts of England and Wales for injunctive or other interim relief at any time.
16. Force Majeure
16.1 “Force Majeure Event” means any circumstance not within a Party’s reasonable control including:
16.1.1 acts of God, flood, drought, earthquake or other natural disaster;
16.1.2 epidemic or pandemic;
16.1.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
16.1.4 failure of IT or telecommunication systems or software (including a failure of the IT or telecommunication systems or software of a third party);
16.1.5 nuclear, chemical or biological contamination or sonic boom;
16.1.6 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
16.1.7 collapse of buildings, fire, explosion or accident;
16.1.8 any labour or trade dispute, strikes, industrial action or lockouts; and
16.1.9 interruption or failure of utility service.
16.2 Provided it has complied with Clause 16.3, if a Party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event (“Affected Party“), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such hindrance, failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
16.3 The Affected Party shall:
16.3.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other Party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and
16.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
16.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 45 days, the Party not affected by the Force Majeure Event may terminate the Agreement by giving the Affected Party written notice.
17. Assignment and other dealings
17.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement.
17.2 Coyote may at any time:
17.2.1 assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Agreement; and
17.2.2 sub-contract any of its obligations under the Agreement, provided that Coyote shall remain responsible for the acts and omissions of any such sub-contractor as if they were acts or omissions of Coyote.
Subject to Clause 14, no variation of the Agreement shall be effective unless it is in writing and signed by the Parties (or their authorised representatives), provided that Coyote shall be free to make non-material changes to these Legal Terms by providing the Customer with reasonable notice of the relevant change.
19.1 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
19.2 A failure or delay by a Party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
19.3 A Party that waives a right or remedy provided under the Agreement or by law in relation to one Party, or takes or fails to take any action against that Party, does not affect its rights in relation to any other Party.
20. Rights and remedies
The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21.1 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Agreement.
21.2 If one Party gives notice to the other of the possibility that any provision or part-provision of the Agreement is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
22.1 The Agreement constitutes the entire agreement between the Parties, and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 The Parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those that are expressly stated in the Agreement.
22.3 Neither Party shall have any remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement, unless the statement was made fraudulently.
23.1 The Agreement shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to it any documentation submitted by the Customer, or in any correspondence or elsewhere or implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by a director or other authorised representative of both Parties.
23.2 If there is any conflict or inconsistency between any of the provisions of the Order Form, these Legal Terms and Statements of Work entered into by the Parties, then the conflict or inconsistency shall be resolved by giving the documents the following order of precedence (with the earlier mentioned documents taking priority):
(a) any Special Conditions in a Statement of Work;
(b) any Special Conditions in the Order Form;
(c) these Legal Terms (excluding the Schedules);
(d) the Schedules to these Legal Terms;
(e) any Statements of Work; and
(f) the Order Form.
24. No partnership or agency
24.1 Nothing in the Agreement is intended to, nor shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute either Party the agent of the other Party, or authorise either Party to make or enter into any commitments for or on behalf of the other Party.
24.2 Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
25. Third party rights
The Parties do not intend that any other person other than a Party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
26.1 Any notice given to a Party under or in connection with the Agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) (in the case of notices to be provided to Coyote) sent by email to the address specified below: Coyote email address for notices: email@example.com
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting or, if later, at the time recorded by the delivery service; and
(c) if sent by email, at 9.00am on the next Business Day after transmission.
26.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
28. Governing law
The Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.
Schedule 1 – Template statement of work
Please use the following links to download a template statement of work:
Schedule 2 – Part 1 – Support and Maintenance Services
1.1 Unless otherwise defined in this Schedule, words and phrases shall have the meaning set out in the Agreement.
1.2 Where used in this Schedule, the following words and phrases shall have the following meanings:
1.2.1 “Agreed Downtime” means any period of downtime lasting less than 15 minutes, any unavailability caused by Scheduled Releases, Scheduled Maintenance, Hot Fix Releases, or emergency maintenance, and any downtime that has been agreed between the parties;
1.2.2 “Customer Success Manager” means the Customer’s main point of contact at Coyote, as notified to the Customer by Coyote from time to time. The Customer Success Manager may review, at their discretion, (i) the Customer’s use of the On-Going Services and (ii) the Customer Materials; in each case for the purpose of assisting the Customer to use the On-Going Services more effectively, and in order to perform its obligations under this Agreement. This may include providing reporting and Customer usage insights from time to time (if agreed between the Customer and Coyote);
1.2.3 “Hot Fix Release” means an update that is released to fix an urgent or critical issue that affects the functionality or security of the Software (and “Hot Fix Releases” shall be construed accordingly);
1.2.4 “Scheduled Maintenance” means planned downtime for infrastructure maintenance, upgrades or updates, to ensure system stability and security, notified to Customer by Coyote a reasonable time in advance of such downtime taking place, and usually to take place outside of Standard Support Hours;
1.2.5 “Scheduled Release” means a release that provides technical upgrades and other changes as defined by Coyote, and resolutions to a list of Defects, and usually to take place outside of Standard Support Hours (and “Scheduled Releases” shall be construed accordingly);
1.2.6 “Software Availability” means the actual availability of the Software in a calendar month calculated according to the table in paragraph 1.3 of Part 2 of this schedule below;
1.2.7 “Support Desk” means a support desk to receive Tickets, by in-app chat function or e-mail (firstname.lastname@example.org), or, if neither of those are available or accessible, via escalation to the Customer Success Manager in the first instance;
1.2.8 “System Outage” means complete Software unavailability for all Coyote customers, or the inability to correctly utilise material functionality of the Software by all Coyote customers; and,
1.2.9 “Ticket” means a Customer query related to the Software, that is reported to Coyote by the Customer via the Support Desk, and has yet to be diagnosed by Coyote as (i) a query that can be resolved without changes being made to the Software, (ii) a Change Order, or (iii) a Defect.
2. Support service
2.1 Coyote hereby agrees to provide a Support Desk to the Customer during Standard Support Hours.
2.2 Coyote will log all Tickets received via the Support Desk on the support database, and monitor the resolution of each Ticket.
2.3 If a Ticket requires a change to the Software it will either be classified by Coyote, in its sole discretion, as (i) a Change Order to be dealt with in accordance with Clause 14 of the Legal Terms; or (ii) a Defect to be dealt with in accordance with paragraphs 4 and 5 of this schedule.
2.4 If a Ticket relates to a query which can be resolved without changes being made to the Software, Coyote will liaise with the Customer and use reasonable endeavours to resolve the query within a reasonable timeframe.
2.5 In the event of a System Outage or other Severity Level 1 Defect, Coyote shall use reasonable efforts to identify the cause of such System Outage or other Severity Level 1 Defect, and shall diligently and promptly work to try and resolve such System Outage or other Severity Level 1 Defect.
2.6 If the duration of a System Outage or other Severity Level 1 Defect exceeds thirty (30) minutes from the time it was classified by Coyote as a Defect, then Coyote shall notify Customer through a banner notification in the Software. In the event that a banner notification is not available, then Coyote shall, if the Customer requested email updates when they submitted their Ticket to the Support Desk, notify the Customer via email as to the status and expected restoration of complete Services. Coyote shall continue to provide updates on the System Outage or other Severity Level 1 Defect every four (4) hours until it is resolved through banner notifications and/or email notifications (as applicable).
2.7 The Customer shall be liable to pay Coyote reasonable charges in accordance with Coyote’s Rate Card for performing investigations into Tickets that diagnosis by Coyote reveals not to be as a result of a Defect.
2.8 In the event that the Customer cannot make contact with the Support Desk, or their Customer Success Manager, the Customer shall continue its efforts to personally notify Coyote of any queries by emailing the following Coyote representatives in the order listed until Coyote’s representative is contacted in person:
2.8.1 Director, Head of Revenue, James Campbell (James.Campbell@coyote.co.uk)
2.8.2 Head of Service Delivery. Rhys Ackery (Rhys@coyote.co.uk)
2.8.3 Chief Operating Officer. Jeremy Gristwood (Jeremy@coyote.co.uk)
2.8.4 Chief Executive Officer. Oli Farago (Oli@coyote.co.uk)
2.9 Coyote will provide a Customer Success Manager to manage the Support and Maintenance Services and to provide a point of contact for the Customer. The responsibilities of a Customer Success Manager will include:
2.9.1 providing first line triage of support issues supplied via email or in-app chat;
2.9.2 providing best practice support on the Software;
2.9.3 working with the senior Customer contact to achieve pre-set goals and objectives;
2.9.4 regular communication with the senior Customer contact; and
2.9.5 producing usage insights and attending quarterly meetings with the senior Customer contact (if agreed between the Customer and Coyote).
2.10 The Customer will provide a senior contact to ensure the quality and relevance of the issues raised with Coyote and provide a senior point of contact for Coyote. The responsibilities of such senior contact will include:
2.10.1 verifying issues prior to them being reported to Coyote, ensuring that they are not duplicates and that they are provided with a sufficient level of documentation;
2.10.2 escalating issues to the Coyote Customer Success Manager;
2.10.3 reviewing priorities with Coyote;
2.10.4 attending quarterly meetings with Coyote; and
2.10.5 completing a quarterly support survey.
3. Defect classification and notification
3.1 Customer Responsibility. The Customer will make an initial nonbinding classification of a suspected Defect when submitting a Ticket, based on the criteria set forth below (“Customer Classification”) and will report, without delay, such Defect to Coyote via the Support Desk. Coyote shall either confirm the Customer Classification, or notify the Customer that it does not agree, and provide an updated classification to the Customer (“Coyote Classification”). The Coyote Classification shall be final and binding.
3.2 Classification Criteria.
Defect Severity Level
|Defect Severity Classification||Determination Criteria|
|Severity Level 1||The Software is not working, a significant function of the Software is not properly working or a significant number of Authorised Users are unable to access or use some functionality. There is, or if the problem is not promptly remedied, is likely to be, a significant impact to the Customer’s business. This severity level also includes System Outages.|
|Severity Level 2||The functionality of the Software is impaired or some Authorised Users are unable to access or use some functionality. There is some impact to the Customer’s business.|
|Severity Level 3||Low impact to Authorised Users of the Software.|
4. Target response times
4.1 All Tickets. Coyote will use reasonable endeavours to acknowledge all Tickets raised via the Support Desk within 15 minutes of notification of the Ticket to Coyote, within Standard Support Hours.
4.2 Defects. Once a Ticket is classified by Coyote as a Defect, Coyote will use reasonable endeavours to respond to such Ticket within the response times set out below:
4.2.1 1st Level Response. Coyote to acknowledge that a Ticket received via the Support Desk has been classified as a Defect and confirm Customer Classification or provide a Coyote Classification.
4.2.2 2nd Level Response. Either, (i) a route cause analysis indicating the Defect relates to a subcontractor and a resolution plan; or (ii) the identification of work around, provision of a temporary fix, Hot Fix Release, or other temporary resolution of the Defect.
4.2.3 3rd Level Response. Official object code fix incorporated in a future Scheduled Release or a code based work around (supported by maintenance).
Support Services Response Targets
|Defect Classification||1st Level Response (within Standard Support Hours)||2nd Level Response (within Standard Support Hours)||3rd Level Response|
|Severity Level 1||15 minutes after a Ticket is classified as a Defect||4 hours after a Ticket is classified as a Defect||Future Scheduled Release|
|Severity Level 2||90 minutes after a Ticket is classified as a Defect||As deemed appropriate by Coyote||Future Scheduled Release|
|Severity Level 3||24 Business Hours after a Ticket is classified as a Defect||As deemed appropriate by Coyote||As deemed appropriate by Coyote|
5. Maintenance services
5.1 Coyote hereby agrees to provide maintenance services to the Customer consisting of:
5.1.1 Scheduled Releases;
5.1.2 Scheduled Maintenance;
5.1.3 Hot Fix Releases;
5.1.4 Emergency maintenance; and
5.1.5 data fixes to fix data corrupted by Defects.
6. Support and maintenance service exclusions
Coyote’s Support and Maintenance Services do not include and/or extend to:
6.1 any form of general management, support or consultancy related to the Customer’s IT infrastructure; or,
6.2 software other than the Software.
7. Dependencies for provision of support and maintenance services
7.1 Coyote shall solely, where necessary, be permitted access to the Software.
7.2 The Services are also dependent on the timely delivery of any required materials from the Customer. These may include, examples of data references/examples, screen shots, and data and other material information as reasonably necessary to support incident diagnosis. The provision of this data by the Customer to Coyote will be subject to the Customer’s physical, information security and data security policies and practices.
Schedule 2 – Part 2 – Target Availability
1. Software availability
1.1 Software Availability. Coyote shall maintain the Software and the equipment upon which the Services are provided with a minimum availability of ninety-nine percent (99%) per calendar month (”Target Availability”) and shall take such commercially reasonable corrective action as may be required to maintain such Target Availability (including but not limited to increasing hardware performance at Coyote’s sole expense, subject to the Customer’s fair use of the Software as reasonably determined by Coyote from time to time).
1.2.1 The availability of the Software shall be monitored by Coyote to confirm the ability to access the Software in accordance with the Target Availability.
1.2.2 The Customer shall report any System Outage, or other suspected Defect to Coyote without delay via the Support Desk.
1.2.3 The duration of a System Outage or Severity Level 1 Defect shall be calculated from the the time at which a Ticket is classified by Coyote as a Defect which is a System Outage or other Severity level 1 Defect.
1.3 Calculation. Software Availability shall be calculated as detailed in the table below.
Software Availability Calculation
|Software Availability % = ( Potential Minutes – Actual Downtime ) ÷ ( Potential Minutes × 100 )|
“Potential Minutes” is the total number of minutes the Software can be available during a calendar month less the Agreed Downtime.
“Actual Downtime” is the sum of all System Outages and other Severity Level 1 Defects (each classified as such by Coyote) in minutes in the same calendar month.
1.4 Software Monitoring. The Parties acknowledge that Coyote’s systems will be the primary source of information regarding the performance of the Software; however, Coyote shall not unreasonably reject Customer’s data regarding the performance of the Software and conformance to the Target Availability, if applicable. Coyote shall provide Customer with data including statistical reports, user access event data, and the list of Authorised Users and their roles with respect to the Software within ten (10) days of a written request for such information from Customer via the Support Desk or Customer Success Manager.
2. Service level credits
2.1 In the event that Coyote fails to meet the Target Availability in any calendar month set forth herein (a “Service Level Failure”), then Customer shall be entitled to a credit (applicable to fees paid or payable) as the result of a Service Level Failure (“Service Level Credit”) as set forth below. A Service Level Credit paid to the Customer in accordance with this schedule shall be the Customer’s sole and exclusive remedy for a Service Level Failure.
2.2 In order to claim Service Level Credits, Customer must request, giving Coyote no less that ten (10) days’ written notice, that Coyote reports any Service Level Failures occurring in the previous calendar month (each such report being a “Service Level Report”). Coyote shall provide Customer with Service Level Credits for any Service Level Failures reported in a Service Level Report. Any Service Level Credit shall be applied as a credit in the applicable amount on the next invoice for Fees submitted by Coyote or, if there are no remaining invoices, Coyote shall pay Customer the amount of such Service Level Credit within forty-five (45) days of the date of the relevant Service Level Report.
2.3 Service Level Credits shall not be payable where any Service Level Failure is due to:
2.3.1 a Force Majeure Event;
2.3.2 any default or action on the part of the Customer; or
2.3.3 any other circumstances caused by any fault of failure in any utility supply systems or infrastructure beyond Coyote’s control.
2.4 In the event that Service Level Credits apply in accordance with this paragraph 2, Service Level Credits shall not be credited or payable by Coyote if the Customer has any overdue invoices on their account.
2.5 Calculation of Service Level Credits:
Service Level Credit (% Fees within a Month for the Software)
|Software Availability in each calendar month calculated in accordance with paragraph 1.3 above.||Service Level Credit (stated in percentage of the prorata monthly fees)|
|99.00% to 100%||0%|
|98.00% to 98.99%||10%|
|97.50% to 97.99%||12%|
|96.50% to 97.49%||15%|
|95.50% to 96.49%||18%|
|95.00% to 95.49%||25%|
|94.00% to 94.99%||33%|
|Less than 94%||50%|
3. Root cause analysis
Coyote shall perform a root cause analysis of each failure to meet the Target Availability and shall document a plan for addressing the root cause of each such failure. The Customer may request in writing, and Coyote will provide following such request, a copy of any such plan. Coyote shall promptly investigate, assemble and preserve pertinent information with respect to, report on the causes of, and correct all performance-related failures associated with the Software, including performing and taking appropriate preventive measures to prevent recurrence.
Schedule 3 – Rate card
1. Subject to Coyote’s rights to vary the rates pursuant to the Agreement, the following rates apply for all Additional Services as at the date of the Agreement.
|Full Day (8 hours)||Professional Services / Development Time / Investigation of Tickets with Coyote Personnel||£1,350.00 / per day|
|Half Day (up to 4 hours)||Professional Services / Development Time / Investigation of Tickets with Coyote Personnel||£750.00 per ½ day (up to 4 hours)|
1.1 Daily rates are provided on the basis of an 8 hour working day. Any proportion of a full 8 hour day worked shall be calculated and payable using the charges listed above on a pro rata hourly basis (rounded up to the nearest hour).
1.2 Where on request by the Customer, Coyote provides Additional Services to the Customer between 8:00pm and 8am during Business Days, the Customer shall pay charges to Coyote calculated at a rate equivalent to one and a half times the above rates with a minimum charge equivalent to one hour.
1.3 Where on request by the Customer, Coyote provides Additional Services to the Customer during any days which are not Business Days, the Customer shall pay charges to Coyote calculated at a rate equivalent to twice the standard rates above with a minimum charge equivalent to one hour.
Schedule 4 – CoyotePLUS additional terms
1. The Customer is entitled to terminate its CoyotePLUS subscription at the end of the Initial Term, or the end of any Renewal Term (as applicable) provided notice is received in writing by Coyote at least sixty days prior to the end of the Initial Term or the then current Renewal Term (as applicable). If such notice is not received, the subscription will auto-renew in accordance with the terms of the Agreement.
2. If the Asset Records provided to Coyote relate to an asset which forms part of the Customer’s acquisition pipeline, Coyote will use reasonable endeavours to upload such Asset Records into the Customer’s instance of the Software by the end of the next Business Day after receipt from the Customer (unless an alternative timetable is agreed between the Parties), subject to the other provisions of the Agreement, and in particular, the maximum number of Asset Records which can be uploaded monthly (as set out in the Order Form or SOW (as applicable). In all other cases, Coyote will use reasonable endeavours to upload Asset Records into the Customer’s instance of the Software within five Business Days of receipt (unless an alternative timetable is agreed between the Parties), subject to the other provisions of the Agreement.
3. The Customer may provide Coyote with Asset Records to upload to the Software as part of the CoyotePLUS Services. Such Asset Records must not include (and Coyote will not upload to the Software) data or information that pre-dates the Customer’s signature of the Agreement or the relevant Statement of Work under which CoyotePLUS Services are provided (as applicable) (or which Coyote reasonably suspects pre-dates the Customer’s signature of the Agreement, or the relevant Statement of Work under which CoyotePLUS Services are provided (as applicable)).
4. Coyote is not obliged to carry out Bulk Uploads. Coyote will only upload Customer Materials to the Software to the extent that such materials are Asset Records, or relate to, or are associated with, an Asset Record. A bulk upload of data means any upload of data pertaining to 20 or more individual Asset Records (whether received by Coyote in one document or multiple) (“Bulk Upload”). The Customer may request that Coyote performs a Bulk Upload, and Coyote may agree to such upload in its sole discretion on a case by case basis.
5. If and to the extent that any Customer Materials contain data and/or information owned by a third party and licensed to the Customer, the Customer is solely responsible for ensuring that such data and/or information is used in accordance with any conditions imposed by such third party owner. It is the Customer’s sole responsibility to delete such data and/or information from the Software in accordance with any third party terms and conditions, and the Customer must notify Coyote immediately in writing as soon as it becomes aware that there is data and/or information stored in the Software which the Customer no longer has the right to use.
Data processing addendum
Processing, personal data and data subject
|Duration of the Processing||The duration of Coyote’s contract with the Customer, or longer if required by applicable law.|
|Scope, nature and purposes of the Processing||Coyote will process Personal Data transferred to it in order to provide the Software and the Services to the Customer, carry out its contractual obligations under the contract between Coyote and the Customer and in order to provide any other products or services purchased by the Customer from time to time from time to time (“Purpose”). |
The nature of the Processing may include collection, recording, organisation, structuring, storage, retrieval, consultation, use, erasure, or destruction, of Personal Data in each case as necessary for the Purpose.
|Type of Personal Data||The types of Personal Data that Coyote will Process may include name, email address, telephone number, IP Address, LinkedIn Profile URL, job title, employer.|
|Categories of Data Subject||Data Subjects may include staff (including volunteers, agents and temporary workers), suppliers, and third party customers of the Customer.|
You can find previous versions of Coyote’s legal terms in the archive.