This is version 18.03, updated on 15th July 2020.
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” has the meaning set out in the Commercial Terms;
“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;
“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;
“Agreement” means the Commercial Terms, the 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 the Legal Terms);
“Applicable Laws” means all applicable laws, statutes, regulation of any relevant jurisdiction where the Software and Services are provided from, as amended and in force from time to time;
“Authorised Users” means those employees, agents and independent contractors of the Customer who are authorised to use the Software as listed in the Commercial Terms;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Commercial Terms” means the document entitled the “Commercial Terms” 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;
“Confidential Information” means information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, not including information to the extent it: (a) was already lawfully known to the receiving Party at the time of the disclosure; (b) became lawfully known to the receiving Party independently; 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 Personnel” means those officers, contractors, employees, consultants, agents, representatives and advisers of Coyote that are actually providing the Services;
“Customer Materials” means any of images, plans, data, materials or documentation that are supplied to Coyote 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);
“Data Protection Legislation” means the Data Protection Act 2018, the Data Protection Directive (95/46/EC), the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive (2002/58/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003), the General Data Protection Regulation (Regulation 2016/679) and any other data protection laws, regulations and guidelines that are applicable in the UK;
“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 any other documents, products and materials provided by Coyote to the Customer in relation to the Services;
“Effective Date” means the date on the front of this Agreement;
“Fees” means the Implementation Fees, On-Going Fees and Additional Fees (all as defined in the Commercial Terms);
“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 Services” has the meaning set out in the Commercial Terms;
“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 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” has the meaning set out in the Commercial Terms;
“On-Going Services” has the meaning set out in the Commercial Terms;
“Rate Card” means a table outlining the then applicable hourly rate or daily rate for the relevant level of employee or contractor of Coyote that Coyote considers is required (as amended and updated from time to time). For clarity, the current rate card is attached at Schedule 3;
“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 Support Hours” means the hours of 9:00 a.m. to 6:00 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 Schedule 2;
“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 Holding company and subsidiary have the meaning as defined in section 1159 of the Companies Act 2006
1.3 A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.4 Unless otherwise stated, time shall not be of the essence for the performance of any obligation by Coyote.
1.5 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;
1.6 A reference to writing or written includes e-mails.
2. Sow procedure
2.1 Where Additional Services are provided to the Customer or its Affiliates such Additional 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 Commercial Terms and the Legal Terms and shall not form a separate contract to the Agreement.
2.3 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 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 After the expiry of the Initial Term, the Agreement shall automatically continue until terminated by either Party on not less than 6 months’ written notice (such notice to expire no earlier than the last day of the Initial Term).
3.3 The Parties shall not enter into any further Statements of Work after the date on which notice to terminate is served under Clause 3.2
4. License terms
4.1 In consideration for the On-Going Fees, Coyote hereby grants the Customer and its Affiliates a non-exclusive, non-transferable (other than as provided for in the Agreement) licence for the duration of the Agreement for the Authorised Users to use the Software and Deliverables, and to receive the Services subject to the terms of the Agreement.
4.2 The Customer and its Affiliates shall:
4.2.2 not sub-license the Software or Deliverables;
4.2.3 not translate, adapt, vary or modify the Software or 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 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 to use the Software or Deliverables, or to receive the Services. For clarity, the maximum number of Authorised Users that it authorises to access and use the Software shall not exceed the number of user subscriptions the Customer has purchased from time to time;
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 set out at Coyote’s then headline rates;
4.2.6 put into place and maintain reasonable security measures to safeguard the Software and 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 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 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; or
(c) access all or any part of the Software in order to build a product or service which competes with the 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;
5.1.3 ensure that the Software is always available, subject to any emergency or planned maintenance. For clarity, Coyote shall use reasonable endeavours to give as much notice to the Customer as is practicable in advance of any planned 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;
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 (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 7 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 7 days of delivery then the Deliverable shall be deemed to have been accepted by the Customer.
5.4 All Support and Maintenance Services shall be provided in accordance with 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 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 but not limited to Additional Services without either:
5.6.1 such work being agreed in a SoW; or
5.6.2 the prior written approval from 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 Law) all other 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 a Statement of Work;
6.1.5 comply with all Applicable Laws;
6.1.6 ensure that all Authorised Users use 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 procuring and maintaining its network connections and telecommunications links from its systems to Coyote’s data centres, and 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 6 months after termination or expiry of the Agreement, attempt to solicit or entice away from Coyote any Coyote Personnel except where such Coyote Personnel 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 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 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 are notified in writing, from time to time to the extent these are reasonable.
6.4 The Customer warrants that Coyote’s use of the Customer Materials does not infringe the Intellectual Property Rights of any third party.
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 6.1or 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 first.
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 Implementation Fees and On-Going Fees annually in advance but all other Fees monthly in arrears (unless agreed otherwise in a SoW).
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 Subject to Coyote’s right to increase the rates set out in the Rate Card no more frequently than once in any 12-month period to reflect any reasonable and demonstrable increases in Coyote’s staff costs, Coyote may review and increase the Fees provided that it shall give the Customer at least 3 months’ notice prior to the proposed date of the increase and that such increase shall not take effect before the end of the then Initial Term.
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 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).
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 with any Deliverables shall be owned by Coyote (or its licensors). To the extent any Intellectual Property Rights in the Deliverables has 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 to provide the Services to the Customer and such other services that Coyote provides, provided the Customer Materials are only used on an anonymised basis.
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 of the Customer Materials has infringed the Intellectual Property Rights of a third party provided that the claim 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 has infringed the Intellectual Property Rights of a third party provided that:
8.6.1 the claim 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;
8.6.2 the Customer promptly notifying Coyote of the claim;
8.6.3 Coyote having the sole conduct of all negotiations and litigation and settlement arising from the claim;
8.6.4 the Customer providing Coyote with all information and assistance reasonably required by Coyote; and
8.6.5 the Customer making no admission in respect of the claim.
8.7 The indemnities in Clauses 8.4 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.
8.8 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 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 the terms “Controller”, “Data Controller”, “Data Processor”, “Data Subject”, “Processing”, “Processor” and “Personal Data” bear the respective meanings given to them 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.
9.3 If either Party supplies Personal Data (as defined in the Data Protection Legislation) to the other Party or authorises the other Party to collect or process Personal Data from it or its employees in connection with the Agreement then:
9.3.1 the Party supplying or authorising the collection of the Personal Data warrants that:
(a) the data has been fairly and lawfully obtained (or may be collected fairly and lawfully in accordance with its instructions);
(b) it has the right to lawfully supply it (including obtaining express consent from the relevant data subject to the processing of the data in accordance with the Agreement (where necessary)); and
(c) that 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); and
9.3.2 the Party receiving, collecting or processing the other Party’s Personal Data (“Processing Party”) warrants that it will:
(a) comply with its own obligations under the Data Protection Legislation when using, disclosing or otherwise processing such Personal Data;
(b) 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;
(c) only process that Personal Data in accordance with the instructions that it receives from the data controller;
(d) only authorise a third party to process the Personal Data provided that such third party enters into a written agreement with the Processing Party where the third party is obliged to comply with this Clause 9;
(e) ensure that access to the Personal Data is limited to those employees or authorised subcontractors who need access in order to meet the Processing Party’s obligations under the Agreement and that all such employees and authorised subcontractors are informed of the confidential nature of the Personal Data; and
(f) not transfer the data outside of the European Economic Area or to countries that do not ensure an adequate level of protection for the rights of the data subject without the other Party’s prior written consent (such consent not to be unreasonably withheld or delayed provided that any appropriate safeguards (as required by the Data Protection Legislation) are in place). For clarity, the Customer acknowledges that, without prejudice to Clause 9.3.1, Coyote shall be permitted to transfer any Personal Data received, collected or processed under or in connection with the Agreement to its Affiliates or into a cloud storage environment that may have servers located outside the European Economic Area.
9.4 Upon a Party becoming aware of any breach of the Data Protection Legislation (including any accidental, unauthorised or unlawful access, destruction, loss or alteration in relation to the Personal Data) (“Data Breach”), it shall promptly notify the other Party and work with them to mitigate the impact of the Data Breach.
9.5 Each Party shall:
9.5.1 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;
9.5.2 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; and
9.5.3 at the other Party’s discretion, destroy or return all of the other Party’s Personal Data received, processed or generated in connection with the Agreement.
9.6 The Parties agree that there will be changes to the Data Protection Legislation (including as a result of the General Data Protection Regulation (2016/679)) 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.
9.7 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 the Personal Data.
As at the Commencement Date, the Customer warrants and represents to Coyote 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 processing in accordance with Clause 9.3.2.
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 Law).
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 such breach is irremediable or (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);
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; or
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 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 to such support and assistance if any amounts are owed to Coyote on termination.
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 Clause 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; and
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 set out in 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.
14.2 If the Parties:
14.2.1 agree to a Change Order, they shall sign it and that Change Order shall amend the relevant Statement of Work; or
14.2.2 are unable to agree a Change Order, either Party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Clause 15.
14.3 The Parties shall act reasonably and promptly when considering any change to a Statement of Work that is required as a result of a change in Applicable Law 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 Law.
15. Multi-tiered dispute resolution procedure
15.1 Any dispute which may arise between the Parties concerning the Agreement or any Contract 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 calendar 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 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 calendar 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;
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 the 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 Commercial Terms, the 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 Commercial Terms;
(c) the Legal Terms (excluding the Schedules);
(d) the Schedules to the Legal Terms;
(e) any Statements of Work; and
(f) the Commercial Terms.
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 any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any 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 Party 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 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 law 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 – Support and Maintenance Services
Coyote shall provide Support and Maintenance Services to Customer in respect of the Software in accordance
with the Agreement.
Where used in this Schedule, the following words and phrases shall have the following meanings:
- “Target Resolution Times” means the time targets described in paragraph 4 of this Schedule. Coyote
will use reasonable endeavours to try and resolve Defects within these target times;
- “Scheduled Releases” has the meaning set out in paragraphs 2.1 of this Schedule;
- “Resolution Time” means the time taken by Coyote, within the Standard Support Hours, to resolve a Defect from the time the Defect was communicated by Customer. The Resolution Time is calculated against the time that the call was solely within Coyote’s domain. For the avoidance of doubt, the total Resolution Time of a Defect is calculated by adding the separate periods of time when the Defect was solely within Coyote’s domain, regardless of how many times the Defect had to go back to Customer’s domain.
1. Support service
Coyote hereby agrees to provide Support Services to Customer consisting of:
1.1 A support desk to receive incidents, by e-mail or by phone, relating to use of the Software. Coyote will log all calls on the support database and monitor the resolution of all calls. If the issue requires a change to the Software it then becomes a Defect or a change request to be dealt with in accordance with Clause 14 of the Agreement. Where Coyote deems an issue to be a change request rather than a Defect, Coyote and Customer will work together to determine if the issue is a Defect or a change request.
1.2 An incident is any issue that is still to be diagnosed as either a change request or a Defect, or a query that can be resolved without changes being made to the application.
Customer shall be liable to pay Coyote reasonable charges in accordance with Coyote’s Rate Card for performing investigations into incidents that diagnosis reveals not to be as a result of a Defect
2. Maintenance service
Coyote hereby agrees to provide maintenance services to Customer consisting of:
2.1 scheduled releases that provide technical upgrades and other changes as defined by Coyote, and resolution to a list of Defects (“Scheduled Releases”).
2.2 hot fixes, to resolve Defects that are stopping Customer from performing its core business.
2.3 Data fixes to fix data corrupted by Defects.
3. Roles and responsibilities
3.1 Coyote will provide a support account manager to manage the Support and Maintenance Services and to provide a senior point of contact for Customer.
Their responsibilities will include:
- Monitoring service levels and activity
- Agreeing the provision of hot fixes and related Scheduled Releases
- Agreeing Scheduled Releases with the senior Customer contact
- Communication with the senior Customer contact
- Producing monthly reports and attending quarterly meetings with the senior Customer contact
3.2 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.
Their responsibilities will include:
- Reviewing priorities with Coyote.
- Escalating issues to the Coyote support account manager
- 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.
- Attending quarterly meetings with Coyote.
- Completing quarterly support survey.
4. Service levels
4.1 Coyote will provide an initial response to reported issues, dependent on the priority of the issue within the times shown below.
4.2 On-site support may be provided for critical issues when considered by Coyote as the most effective way of resolving the issue.
|Priority||Description||Initial response time||Follow up time||Target resolution time|
|1||The Software is unavailable.||15 minutes||30 minutes||1 hour|
|2||A problem or query exists where use of the|
system is proceeding but in a significantly
impaired fashion, due to an application
software defect, one or more modules of
the system are unusable.
Typical examples include; processing of
external messages, failure of internal batch
processes, and inability to save data.
|1 hour||2 hours||4 hours|
|3||A problem or query of an important nature|
exists; which may impact use of the system
over time, e.g. a software defect exists, but
there is a procedural or technical
workaround identified that does not
significantly impact the business process
being carried out.
|4 hours||4 hours||48 hours|
|4||A problem or query exists, which does not|
have significant impact on the use of the
system, e.g. cosmetic changes – labels,
screen layout, usability / navigational.
|24 hours||24 hours||72 hours|
4.3 Coyote will provide an initial response to each Defect and resolve each Defect in line with the follow up times and Resolution Times specified above within the Standard Support Hours.
5. Support and maintenance service exclusions
For the avoidance of doubt, Coyote’s Support and Maintenance Service does not include:
5.1 any form of general management, support or consultancy related to the Customer’s IT infrastructure,
5.2 software other than the Software,
5.3 any circumstance where Customer has failed to accept a Scheduled Release within the timeframe agreed between the parties.
6.1 Coyote shall solely where necessary be permitted access to the Software.
6.2 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 Customer to Coyote will be subject to Customer’s physical, information security and data security policies and practices.
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.
|Band 1||Director||£1,800 / day|
|Band 2||Head of Consulting / Head of Development||£1,200 / day|
|Band 3||Senior Consultant / Senior Developer||£1,000 / day|
|Band 4||Consultant / Developer / Trainer||£800 / day|
|Band 5||Junior Consultant / Junior Developer||£600 / day|
1.1 Daily rates are calculated on the basis of a 7 hour Working Day. Any proportion of a full 7 hour day worked shall be payable on the agreed hourly rates, which shall be calculated 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, Customer shall pay to Coyote on a time basis at a rate equivalent to one and a half 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 Sundays or bank holidays, the Customer shall pay to Coyote on a time basis at a rate equivalent to twice the Standard Rates with a minimum charge equivalent to one hour.
You can find previous versions of Coyote’s legal terms in the archive.