BankBI Terms and Conditions

BankBI UK Limited Terms and Conditions

TERMS AND CONDITIONS

1. DEFINITIONS

The following definitions apply to this Agreement (unless expressly provided otherwise or the context requires otherwise):

1.1 “Application” means the BankBI cloud-based business intelligence solution as described in the Order Form, its functionality and any of images, written material, databases or other material available via the Site;

1.2 “Application Services” means the online services made available by BankBI to You via the Application as described in the Software as a Service License Order Form;

1.3 “Authorised Device” means any device which is compatible with the BankBI Application and which is owned or controlled by You or Your Authorised User;

1.4 “Authorised User” means Your direct employees (the number of which is stated in the Order Form) and such number of additional employees for whom a valid User Subscription to access and use the Application is purchased by You;

1.5 “Azure” is a cloud computing service created by Microsoft for building, testing, deploying, and managing applications and services through a global network of Microsoft-managed data centres.

1.6 “Azure Geography” is a discrete territory in the Microsoft Azure global network, that ensures that data residency, sovereignty, compliance, and resiliency requirements are honoured within geographical boundaries.

1.7 “Data” means all Your core banking and general ledger data input or imported by You onto the Application via the Site;

1.8 “Data Protection Legislation” means, in the case of BankBI, all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (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; and in the case of You, all applicable data protection and privacy legislation in force from time to time in the jurisdiction(s) in which You operate;

1.9 “Documentation” means the solutions guides and manuals relating to the Application made available to You by BankBI;

1.10 ”Expenses” means pre-approved accommodation, travel and other associated costs incurred by BankBI in relation to staff performing Professional Services;

1.11 “Fees” means the Licence Fees, the Implementation Fees and the Professional Service Fees;

1.12 “Implementation Fees” means the fees for the Implementation Services as specified in the Order Form;

1.13 “Implementation Services” means the initial implementation of the Application to enable You to make use of the Application Services, as further described in the Order Form;

1.14 “Intellectual Property Rights” means any patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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;

1.15 “License Fees” means the software as a service license subscription fees as specified in the Order Form;

1.16 “Professional Services” means the Implementation Services and/or Recurring Professional Services described in the Order Form together with any additional functions, responsibilities, activities and/or tasks to be performed by BankBI for You as requested in a Services Order;

1.17 “Professional Services Fees” means the fees for the Professional Services, not including Expenses, as specified in the Order Form or determined pursuant to a Services Order;

1.18 “Recurring Professional Services” means the ongoing professional and operational support and maintenance services to be provided in connection with the Application as further described in the Order Form or as requested pursuant to a Services Order;

1.19 “Reports” means the reports run by You using the Application;

1.20 “Renewal Term” shall have the meaning given to it in clause 13.2;

1.21 “Services” shall mean the Application Services and the Professional Services;

1.22 “Services Order” means a request for service, statement of work, addendum or any other contractual document for the ordering of Professional Services, which, in all such cases, is executed by BankBI and You and expressly states that it is entered into under the terms of this Agreement.

1.23 “Site”: www.bankbiapp.com;

1.24 “Subscription Term” means the license subscription period specified in the Order Form.

1.25 “Term” means the Subscription Term and any Renewal Term;

1.26 “User Subscriptions” means the user subscriptions purchased by You from BankBI from time to time which entitle Authorised Users to access the Application and use the Application Services in accordance with the terms of this Agreement.

2. LICENCE

2.1 Subject to the terms of this Agreement, BankBI hereby grants to You and You hereby accept a limited, personal, non-exclusive, non-transferable, non-sub licensable right for Your Authorised Users to access the Application and to use the Application Services and the Documentation during the Term to receive Reports based on Your Data.

2.2 In relation to the Authorised Users, You undertake that:

2.2.1 the maximum number of Authorised Users that You authorise to access and use the Application Services shall not exceed the number of User Subscriptions You have purchased from BankBI from time to time;

2.2.2 You will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access the Application or to use the Application Services; and;

2.2.3 each Authorised User shall keep a secure password for their use of the Application and each Authorised User shall keep their password confidential and change their password no less frequently than twice a year.

2.3 Subject to clause 2.4, You may, from time to time during the Term, purchase additional User Subscriptions in excess of the number set out in the Order Form and BankBI shall grant access to the Application and use of the Application Services and Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

2.4 The price payable by You to BankBI for each additional User Subscription is stated in the Order Form and is payable in advance for the remainder of the Term subject to clause 2.6.

2.5 If You wish to purchase additional User Subscriptions, You shall notify BankBI in writing or by email. BankBI shall evaluate such request for additional User Subscriptions and respond to You with approval or rejection of such request.

2.6 If BankBI approves your request to purchase additional User Subscriptions, You shall, within 30 days of receipt of BankBI’s invoice, pay to BankBI the relevant fees for such additional User Subscriptions as set out in clause 2.4 and, if such additional User Subscriptions are purchased by you part way through the Subscription Term or a Renewal Term, such fees shall be pro-rated for the remainder of the Subscription Term or the Renewal Term (as the case may be).

3. APPLICATION USE

3.1 Your Authorised Users may access the Site and use the Application via a desktop computer or an Authorised Device during the Term.

3.2 You acknowledge and agree that You shall require each Authorised User to create a user account, including a user name and password or such other login credentials as BankBI may request from time to time in order for the Authorised User to access the Application and use the Application Services.

3.3 Each Authorised User is responsible for ensuring that all usernames and passwords required to access the Site are kept secure and confidential. If You or any of Your Authorised Users are aware of any unauthorised use of their password or any other breach of security, Your Authorised User must reset their password. BankBI will not be liable for any loss or damage from You or Your Authorised User’s failure to comply with this security obligation.

3.4 You acknowledge and agree that certain third party software which is not incorporated into the Application may be required in order for Your Authorised Users to use or enjoy the full benefit of the Application and the Application Services (including without limitation Microsoft Excel and Adobe Acrobat Reader). You shall be fully responsible for obtaining a lawful copy of such software. Your use of such separately acquired software shall be in accordance with any terms and conditions of the end user licence agreement provided with such software.

3.5 When accessing and using the Application You and Your Authorised Users must only access the Application manually. The use of automated agents or automated software to view the Site is forbidden. Any such use or attempted use of an automated program shall be a misuse of this Site and the Application and a material breach of this Agreement.

3.6 You accept that You are solely responsible for ensuring that your computer systems and Authorised Devices meet all relevant technical specifications necessary to use the Application and that Your computer systems are compatible with the Application.

3.7 You and Your Authorised Users must not misuse the Site or the Application. In particular, You must not hack into, circumvent security or otherwise disrupt the operation of the Site or the Application, or attempt to carry out any of the foregoing. This includes introducing unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive material, viruses, trojans, worms, logic bombs, material which facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or is otherwise illegal or causes damage or injury to any person or property or other material which is or could be malicious or technologically harmful to the Site or the Application.

4. PROFESSIONAL SERVICES

4.1 BankBI shall use reasonable endeavours to supply the Professional Services in accordance with the Order Form or any Services Order in all material respects.

4.2 BankBI shall use reasonable endeavours to meet any performance dates specified in the Order Form or any Services Order or otherwise agreed with You but any such dates shall be estimates only and time for performance by BankBI shall not be of the essence of this agreement.

4.3 BankBI warrants that the Professional Services will be provided using reasonable care and skill.

5. FEES

5.1 You shall pay the Licence Fees and the Professional Services Fees stated in the Order Form annually, in advance with the first payment due on or before the Effective Date.

5.2 The Implementation Fees will be payable from the Effective Date in accordance with the Order Form and clause 6.1.

5.3 The Licence Fees and the Professional Services Fees shall be payable by You to BankBI each year on the anniversary of the Effective Date unless this Agreement is terminated in accordance with Clause 13.

5.4 For any Professional Services required and agreed pursuant to a Services Order, You will pay the additional Professional Services Fees to BankBI in accordance with the relevant Services Order.

5.5 All sums payable under this Agreement are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question. A sales or value added tax invoice shall be provided against any payment if required by the applicable law.

5.6 You shall be responsible for the collection, remittance and payment of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the provision of the Services by BankBI.

5.7 BankBI will be solely responsible for the payment of all remuneration and benefits due to the employees of BankBI, including any National Insurance, income tax and any other form of taxation or social security costs.

5.8 Subject to Your prior written approval You are responsible for all reasonable out-of-pocket Expenses associated with any Professional Services that are to be provided by BankBI according to the Order Form or a Services Order (if applicable) and Expenses and/or per diems shall be charged in accordance with the relevant Order Form or Services Order.

5.9 BankBI will furnish statements and vouchers to You for all such Expenses.

5.10 Unless otherwise specified in the Order Form or a Services Order, BankBI may invoice monthly in arrears any Professional Services Fees that are expressed to be charged on a time and materials basis.

6. PAYMENT TERMS.

6.1 You shall pay the invoiced amounts in the indicated currencies within fourteen (14) working days of receipt of the invoice.

6.2 BankBI reserves the right to immediately suspend the provision of Services, without notice, in the event You fail to comply with the obligations in 6.1 or any other payment obligation under this Agreement.

6.3 All Fees under this Agreement shall be subject to annual increase as detailed in the Order Form.

6.4 All payments to be made under this Agreement shall be made in cleared funds, without any deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority. If You are compelled to make any such deduction, the You will pay to BankBI such additional amounts as are necessary to ensure receipt by BankBI of the full amount which BankBI would have received but for the deduction.

7. OUR RIGHTS AND INTELLECTUAL PROPERTY

7.1 All Intellectual Property Rights in the Site, the Application, Documentation and the Application Services belong to BankBI or our licensor(s) and BankBI grants no rights in any of Intellectual Property Rights except as stated in this Agreement. You acknowledge and agree that the Application and all Intellectual Property Rights associated with it are and will always remain with BankBI. You further acknowledge and agree that the source code and object code of the Application and the format, directories, queries, algorithms, structure and organisation of the Application are the intellectual property, proprietary and confidentiality rights of BankBI. All rights are reserved. You agree that You and each of Your Authorised Users will not use such intellectual property, proprietary and confidentiality rights in any way except for use of the Application Services as permitted by this Agreement.

7.2 Subject to clause 2 of this Agreement, you may download material from the Site for the sole purpose of using the Application and the Application Services. You must not copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to discover the source code of or decrypt the Application or use the Application to create a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for the Application Services.

7.3 You will procure that Your Authorised Users are aware of Your obligations under this Agreement and You shall ensure that Your Authorised Users are not in breach of any provision of this Agreement. Breach of any of these terms by Your Authorised Users will be deemed to be a breach by You and You shall be liable for any such breach.

8. YOUR DATA

8.1 BankBI may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Application Services. Although BankBI owns all code, databases and Intellectual Property Rights in the Application, the Application Services and the Site, You retain all rights to your Data.

8.2 BankBI may place information concerning You on a database for internal use only. BankBI will never disclose Your details to any third party unless required to do so by law.

8.3 The BankBI Application runs in multiple identical Azure environments and Authorised Users are directed to the closest geographical environment when accessing the Site. In the event of an Azure environment failure all users of that environment will be redirected to an alternative, operational environment until the failed environment is restored according to the terms described in Schedule A attached.

8.4 BankBI databases are located in the Azure data centre geographically closest to Your main base of operations and backups are replicated at alternative, geographically separate Azure data centres. In the event of catastrophic failure at the data centre containing Your database, then complete restoration is available from a backup that has been replicated to an operational data centre. The Application will then be reconfigured to use this restored database according to the terms described in Schedule A attached.

8.5 Data required for the day to day operation of the Application are stored in Azure SQL databases. These databases are continually backed up with log backups and held for a number of weeks for use by ‘point in time restore’ functionality allowing databases to be restored to any point over that time period should it be required.

8.6 Catastrophic loss of an Azure environment is mitigated by restoring geographically redundant data backups to an alternative operating region. Further to the BankBI Application databases, Your uploaded Data files are also stored in geographically redundant storage. In a ‘worst case’ scenario, BankBI is able to rebuild an organisation’s reporting database by re-importing them according to the terms described in Schedule A attached.

8.7 The Data will be stored by BankBI in the Azure Geography specified in the Order Form.

8.8 BankBI cannot and will not be liable to you for any loss of Data arising from any act or omission of Microsoft; provided that if Microsoft indemnifies BankBI for any loss of Data then BankBI shall indemnify You for the same amount.

8.9 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data and BankBI will not be responsible for inaccuracy in the production of Reports arising from any inaccuracies or errors contained in the Data.

9. DATA PROTECTION

In this clause 9, the terms “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures” shall have the meaning given to them in the Data Protection Legislation. For the avoidance of doubt, BankBI does not store any of Your customers’ personally identifiable information (PII) data.
9.1 Both parties will comply with all applicable requirements 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.

9.2 The parties acknowledge that for the purposes of the Data Protection Legislation, You are the Controller and BankBI is the Processor.

9.3 Without prejudice to the generality of clause 9.1, You shall ensure that You have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to BankBI for the duration and purposes of this Agreement.

9.4 Without prejudice to the generality of clause 9.1, BankBI shall, in relation to any Personal Data processed in connection with the performance by BankBI of its obligations under this Agreement:

9.4.1 process that Personal Data only on Your documented written instructions unless BankBI is required by applicable Data Protection Legislation to otherwise process that Personal Data;
9.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, 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 (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
9.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
9.4.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
9.4.4.1 BankBI and You have provided appropriate safeguards in relation to the transfer;

9.4.4.2 the data subject has enforceable rights and effective legal remedies;

9.4.4.3 BankBI complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

9.4.4.4 BankBI complies with reasonable instructions notified to it in advance by You with respect to the processing of the Personal Data,

and You expressly acknowledge that the BankBI Application runs in Azure data centres which may be located outside of the UK and the EEA. You hereby consent to the transfer of Personal Data outside the UK and the EEA within the Azure global network;

9.4.5 assist You, at Your cost, in responding to any request from a Data Subject and in ensuring compliance with Your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

9.4.6 notify You without undue delay on becoming aware of a Personal Data Breach;

9.4.7 at Your written direction, delete or return Personal Data and copies thereof to You on termination of the Agreement unless required by applicable Data Protection Legislation to store the Personal Data; and

9.4.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 9.

9.5 You expressly consent to BankBI appointing Microsoft, Inc. as a third-party processor of Personal Data under this Agreement in BankBI’s use of the Azure platform. You further provide your prior, general authorisation for BankBI to appoint other third-party processors of Personal Data under this Agreement. BankBI shall ensure that the terms on which it appoints such processors comply with Data Protection Legislation, and are consistent with the obligations imposed on BankBI in this clause 9. As between You and BankBI, BankBI shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9.5. BankBI shall inform You of any intended changes concerning the addition or replacement of the processors, thereby giving You the opportunity to object to such changes provided that if You object to the changes and cannot demonstrate, to BankBI’s reasonable satisfaction, that the objection is due to an actual or likely breach of Data Protection Legislation, You shall indemnify BankBI for any losses, damages, costs (including legal fees) and expenses suffered by BankBI in accommodating the objection.

10. CONFIDENTIALITY

10.1 Confidential information (the "Confidential Information") refers to any data or information relating to Your business which would reasonably be considered to be proprietary to You including, but not limited to, accounting records, business processes, and client records and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to You.

10.2 BankBI agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which BankBI has obtained, except as authorized by You or as permitted under this Agreement.

10.3 All written and oral information and material disclosed or provided by You to BankBI under this Agreement is Confidential Information regardless of whether it was provided before or after the date of this Agreement or how it was provided to BankBI.

11. WARRANTY

11.1 BankBI warrants that the Application and the Application Services do not infringe on any privacy, publicity, reputation or U.S. or foreign patent, trademark, trade dress, trade name, copyright, or other statutory or common law right or proprietary right of a third party.

11.2 During the Term, BankBI warrants that the Application and the Application Services will function in substantial accordance with its written specifications set out in the Documentation.

11.3 In the event of a breach of BankBI’s warranty under clause 11.2, and subject always to clause 11.4, BankBI agrees to use commercially reasonable efforts to cause the Application to function in substantial accordance with its specifications set out in the Documentation.

11.4 The warranty at clause 11.2 shall not apply to the extent of any non-conformance which is caused by use of the Application contrary to BankBI’s instructions, or modification or alteration of the Application by any party other than BankBI or BankBI’s duly authorised contractors or agents. If the Application does not conform with the foregoing warranty, BankBI will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes Your sole and exclusive remedy for any breach of the warranty set out in clause 11.2.

11.5 You acknowledge that the Application and the Application Services have not been developed to meet Your individual requirements and it is therefore Your responsibility to ensure that the facilities and functionality of the Application and the Application Services meet Your requirements.

11.6 Whilst BankBI endeavours to ensure that any material available for downloading from the Site is not contaminated in any way, BankBI does not warrant that such material will be free from infection, viruses and/or similar code. Notwithstanding the foregoing, BankBI shall extend to You any warranty extended to BankBI by a third party for material that You download from the Site.

11.7 Due to the nature of software and the internet, BankBI does not warrant that Your access to, or the running of, the Site or Your use of the Application, the Service or the Site will be uninterrupted or error free. BankBI may suspend, withdraw, discontinue or change all or any part of the Site or the Application without notice. BankBI shall not be liable if it cannot make the Site, the Service or the Application available to You due to circumstances beyond its reasonable control.

11.8 BankBI makes no warranty or guarantee that the Site, the Application or the Service complies with laws other than those of England and Wales.

11.9 Except as expressly and specifically provided for in the Agreement and to the extent permitted by law, BankBI excludes all conditions, warranties, representations or other terms which may apply to the Application Services, the Site, the Application or any content on the Site, whether express or implied.

12. LIABILITY

12.1 Except as expressly and specifically provided in this Agreement You assume sole responsibility for the results obtained from use of the Application Services by Your Authorised Users and for any conclusions drawn from such use. BankBI shall have no liability for any damage caused by errors or omissions in any information uploaded by You or Your Authorised Users onto the Application.

12.2 Nothing in this Agreement will be deemed to exclude BankBI’s liability to you for:

12.2.1 death or personal injury arising from our negligence; or

12.2.2 for fraudulent misrepresentation; or

12.2.3 any other liability which may not be excluded by law.

12.3 Subject to clause 12.2, BankBI will not be liable for any failures due to software or internet errors or unavailability, or any other circumstances beyond its control including but not limited to failures of Microsoft’s systems.

12.4 Subject to clause 12.2, BankBI does not accept any liability for loss of Your or Your Authorised User’s passwords or account ID caused by a breakdown, error, loss of power or otherwise caused by or to Your computer system.

12.5 BankBI may put in place such systems as it may from time to time see fit to prevent automated programmes being used to obtain unauthorised access to the Application and the Site. You are not permitted to use automated programs for such purposes and any such use or attempted use by you of such automated programs is at Your own risk. Subject to clause 12.2, BankBI shall not be liable to You for any consequences arising out of or in connection with any such use or attempted use of automated programs to obtain unauthorised access to our Application or the Site.

12.6 Subject to clauses 12.2 to 12.5 inclusive, BankBI shall not be liable to you for:

12.6.1 any indirect, consequential, special or punitive loss, damage, cost and expenses;

12.6.2 loss of profit;

12.6.3 loss of business;

12.6.4 loss of reputation;

12.6.5 depletion of goodwill; or

12.6.6 loss of, damage to or corruption of Data not attributable to BankBI.

12.7 Without limiting the generality of the foregoing, BankBI’s total liability to You whether in contract, tort (including negligence) or otherwise in connection with this Agreement shall in no circumstances exceed a sum equal to the total fees payable by You to BankBI for the use of the Application in the 12 months immediately preceding the date on which the claim arose or if the claim arose during the period before the expiry of 12 months from the Effective Date, that shorter period.

12.8 BankBI will not be liable for any loss or damage caused by a virus, distributed denial of service attack or other technologically harmful material that may infect Your computer equipment, computer programmes, data or other proprietary material due to Your use of the Application Services and the Application or to Your downloading of any content on it, or any website linked to it.

13. DURATION AND TERMINATION

13.1 This Agreement shall commence on the Effective Date and shall continue for the Subscription Term and thereafter until terminated pursuant to the terms of this Agreement. For clarity, this Agreement shall remain in effect for a minimum period of the Subscription Term .

13.2 The Agreement will automatically renew at the end of the Subscription Term and each Renewal Term for subsequent one (1) year terms (each a “Renewal Term”) unless:-

13.2.1 either party provides the other party with written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current term, in which case this Agreement shall terminate upon the expiry of the then-current term; or
13.2.2 otherwise terminated in accordance with the provisions of clause 13 of this Agreement;
13.3 Without affecting any other right or remedy available to it, BankBI may terminate this Agreement with immediate effect by giving written notice to You if:-
13.3.1 You fail to pay any amount due under this Agreement on the due date for payment and remain in default not less than 21 days after being notified in writing to make such payment;
13.3.2 You commit a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 21 days after being notified to You in writing to do so;
13.3.3 You repeatedly breach any of the terms of this Agreement in such manner as to reasonably justify the opinion that Your conduct is inconsistent with You having the intention or ability to give effect to the terms of this Agreement.
13.4 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:-
13.4.1 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 is deemed unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986;
13.4.2 the other party commences negotiation 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 its creditors 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;
13.4.3 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 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;
13.4.4 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;
13.4.5 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
13.4.6 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
13.4.7 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;
13.4.8 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 13.4.1 to 13.4.7 (inclusive);
13.4.9 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
13.5 On expiry or termination of this Agreement all licences granted under this Agreement shall immediately terminate and your Authorised Users shall no longer have access to the Application or use of the Application Services with immediate effect.
13.6 Termination or expiry of this 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 breaches of this Agreement which existed at or before the date of termination or expiry.
13.7 Clauses 7 and 12 will survive any termination or expiry of this Agreement together with any payment obligations owed by You to BankBI prior to the date of termination or expiry.
13.8 For the avoidance of doubt, You shall not be entitled to cancel any of the Professional Services part way through the Subscription Term or a Renewal Term and such Professional Services shall continue to be supplied and charged for the duration of this Agreement.
14. NOTICES

14.1 All notices shall be given to the parties at the addresses set out in the Order Form.

14.2 If you have registered to use our Application Services then BankBI may serve a notice on you by email at the email address provided to it at the point of registration.

14.3 All notices sent by email will be deemed to have been received on the day that they are sent or, if sent on a bank holiday in England or a Saturday or Sunday, the next working day following the day on which the email was sent. All notices by post will be deemed to have been received 3 working days after the date of posting.

15. FORCE MAJEURE

BankBI shall have no liability to You under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of BankBI or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, epidemic or pandemic, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that BankBI is notified of such an event and its expected duration.

16. GENERAL

16.1 BankBI may from time to time change the content of the Site and the Application.

16.2 This Agreement is the whole agreement between BankBI and You and supersedes and extinguishes all other existing agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You acknowledge that You have not entered into this Agreement in reliance on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

16.3 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.4 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under this clause 16.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.5 Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16.6 A waiver by a party of a breach of any provisions shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay on exercising any right under this Agreement shall not prevent the exercise of that or any other right.

16.7 You may not assign or transfer any benefit, interest or obligation under this Agreement without BankBI’s prior written consent. BankBI may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

16.8 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement and this agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to that Act.

16.9 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.

16.10 Subject to Your prior written approval BankBI may make reference to your company name on the BankBI website or in other promotional material.

16.11 This Agreement and its subject matter and formation (including any non-contractual disputes or claims) are governed by English Law and will be subject to the exclusive jurisdiction of the English courts.

 

Schedule A: Service Level Agreement

 

 

This service level and support agreement is incorporated by reference into the BankBI software license agreement together with the attached terms and conditions (together, the “Agreement”), and is subject to the terms and conditions described therein. Any capitalized terms used herein and not otherwise defined will have the meaning ascribed to them in the Agreement.

 

1. Service Level Agreement (SLA).

 

• “Availability” of the Application is defined and measured as follows: the Application will be available for user login 99% of the time in any calendar quarter except for the Excluded categories as provided below. The Application Availability will be calculated per calendar quarter as follows:

Total – Excluded ≥ 99%

Where:

• Total means the total number of hours between 9am to midnight (GMT) for the quarter; and
• “Excluded” means any of the following:
  • Any planned Downtime (“Downtime”, for purposes of measuring service levels related to the Availability of the Application, shall mean any time that any of the servers are not functioning or accessible during the quarter), including Upgrades (defined as a significant change, major improvement, or additional functionality with respect to the Application), of which BankBI gives eight (8) hours or more notice; BankBI will use commercially reasonable efforts to schedule all planned Downtime during non-working hours;
  • Any unavailability of the Application caused by circumstances beyond BankBI’s reasonable control, including without limitation a force majeure event, Your accident, abuse, or use of the Application in a manner inconsistent with the Documentation, Your failure to comply with the Agreement, Your failure to meet minimum system requirements for the Application, and failure caused by You and/or Your third party providers does not count towards Downtime; and
  • Any unavailability of the Application due to emergency maintenance, including but not limited to security patch installation. BankBI may not provide You with advance notice of emergency maintenance. Loss of Availability of the Application due to emergency maintenance is not considered Downtime.

For any partial calendar quarter during which You subscribe to the Application, Availability will be calculated based on hours for the entire calendar quarter, not just the portion for which You subscribed.

 

• Should BankBI fail to meet 99% Availability of the Application for a calendar quarter, You may receive one full day of additional Application subscription usage at the end of the Subscription Term in which the failure occurred for each 2 hour period of Application unavailability below 99%, up to a maximum of 30 additional days. The remedy specified in this Section shall be the sole remedy available to You for breach of this SLA.

 

• Reporting and Claims. Upon request, BankBI will provide You with a report detailing the Availability of the Application in the prior calendar quarter, as applicable. To file a claim under this SLA, You must contact BankBI and provide the following information in reasonable detail:

• Billing information, including Your name, billing address, billing contact and billing contact phone number
• An explanation of the claim made under this Agreement including any relevant calculations.

Claims may only be made on a calendar quarter basis within thirty (30) days of the end of the relevant quarter, except for periods immediately prior to the end of the Term of the Agreement that do not coincide with a calendar quarter, in which case You must make any claim within thirty (30) days after the end of the Term. All claims must be verified against BankBI’s system records. Should any periods of unavailability of Application submitted by You be disputed, the parties shall resolve the dispute in accordance with the Agreement.

 

2. Technical Support and Incident Severity.

You agree to provide a named individual as the primary contact for technical support issue communications and escalations. Support ticket requests for the Application are available via the application user interface or directly to the support staff at support@bankbi.com. You must make staff available within the response time (defined below) to assist with problem clarification, debugging and resolution. If Your staff are not available, or if Your staff do not respond to communications in a timely fashion, BankBI reserves the right to downgrade the severity of the reported issue. Before opening a support ticket, Your technical staff must first confirm that Your environmental issues (software, laptops, etc.), or network issues (ISP, firewalls, etc.) are not a contributing factor or cause of the problem. Your technicians must classify incidents when opening a support ticket in accordance with the following severity level incident definitions. They must also provide phone, email, and contact information for the incident.

 

 

Severity	Description
1 - Critical	Critical production issue, including complete product unavailability, serious data integrity issues, or significant impacts with critical time dependencies. Examples: ·      No users or systems can connect to the BankBI product or service subscribed to. ·      A product or service malfunctions such that a significant portion of users cannot perform critical tasks and there is no reasonable workaround. ·      The application has a security related error.
2 - High	Major functionality is impacted, or significant performance degradation is experienced that renders the application unusable. Issue is persistent and affects multiple users and/or major functionality. Time criticality is lower. No reasonable workaround.
3 - Medium	Minor system performance issue or bug affecting some users or functionality. Short-term workaround is available but not scalable.
4 - Low	Inquiry regarding a technical issue; information requested on application capabilities, navigation, installation or configuration; bug affecting a small number of users. Reasonable workaround available. Resolution required as soon as reasonably practicable.

 

 

Severity	Response Time[1]	Initiated By	Problem Status Interval*
1	1 business Day	Email response	Once Daily
2	2 business days	Email response	Once Daily
3	3 business days	Email response	TBD based on Response Time call
4	5 business days	Email response	TBD based on Response Time call

 

You may contact customer support via the application website or at support @bankbi.com to track the status of support issues.

 

3. BankBI Support. BankBI shall use commercially reasonable efforts to meet the Response Times as set forth in this document. You are responsible for ensuring that the severity it assigns to a problem adheres to the foregoing definitions. BankBI reserves the right to re-prioritize a severity that is not reasonably consistent with these definitions. If BankBI does so, BankBI shall so advise You and shall cooperate with You to come to an agreement on severity.

 

4. Application Updates. BankBI will use commercially reasonable efforts to provide reasonable prior notice of any proposed Upgrades affecting the Application.

 

5. New Products. BankBI may introduce new functionality for which it charges an additional or separate fee and You may choose whether to purchase such new functionality at Your sole discretion. BankBI will not make any changes or remove any features or functionality from the Application provided pursuant to the Documentation that materially reduce the overall functionality of the Application. Future versions offered by BankBI may be offered/priced separately if they provide substantially different or additional functionality, provided that BankBI will continue to support the then-current offering for not less than the remainder of the then-current term.

 

6. Disaster Recovery. In the event of a disaster that renders the primary data center inoperable, BankBI shall follow its standard disaster recovery procedures and shall use commercially reasonable efforts to restore the most recent available backup of Your Data as set forth in the Agreement.

 

7. BankBI assumes no responsibility for delays or problems that result from Your computing or networking environment, Your third-party vendors and/or Your local or long-distance telephone carriers or ISPs. Use of the Application requires certain third-party applications, including web browser, operating system and other third-party vendor applications.

 

[1] Response Time is the period within which BankBI technical staff will contact Your staff to confirm the severity, gather any additional information needed, and provide an initial assessment of the problem. Problem status is provided via email. Support does not include Holidays.