Terms & Conditions

TERMS AND CONDITIONS IN RELATION TO SUBSCRIPTION AND IMPLEMENTATION SERVICES TO BE SUPPLIED BY SWIFT ONBOARD ACCOUNTS LIMITED (“SWIFT ONBOARD”)

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in the contract.

Acceptable Use Policy: SWIFT ONBOARD’s acceptable use policy as displayed on the Website from time to time.

Active Contractor: a Contractor User who has submitted at least one timesheet using SWIFT ONBOARD Pay and Bill during a Billing Period.

Affiliates: any other company which is an associate of the Customer, including all subsidiaries, holding companies and subsidiaries of holding companies, and includes any other companies with whom the directors of the Customer are associated as either directors, employees or as shadow directors (such judgement to be made using reasonable judgement by SWIFT ONBOARD).

Agreed Go Live Date: the date agreed by the parties for Go Live as set out in the Project Plan.

App: the mobile application provided by SWIFT ONBOARD to the Customer as part of the Services under the contract as more particularly described in the Documentation.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation for the Purpose and, in relation to SWIFT ONBOARD Pay and Bill, shall include a Contractor User and an End Client User.

Back Up Policy: SWIFT ONBOARD’s back-up policy detailed in the SWIFT ONBOARD Technical Overview document as displayed on the Website from time to time.

Billing Period: a period running from the day after the first Friday of a calendar month to the first Friday of the next calendar month.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for normal banking business.

Client: a third party in relation to which the Customer provides services using the Services including, but not limited to, a Limited Company Client and Clients shall be construed accordingly.

Consumer Prices Index: the Consumer Prices Index (CPI)(all items)(United Kingdom).

Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression Change of Control shall be construed accordingly.

Contractor User: a person who is providing services to the Customer and in relation to such services that person will submit timesheets to the Customer using SWIFT ONBOARD Pay and Bill.

Customer: as detailed in the Order Form.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.5 and 12.6.

Consultancy Services: any services to be supplied by SWIFT ONBOARD to the Customer pursuant to a Statement of Works.

Contract Year: each 12-month period commencing on: (i) the Effective Date; and, (ii) each anniversary of the Effective Date during the Subscription Term.

Customer Data: the data inputted by the Customer, Authorised Users, or SWIFT ONBOARD on behalf of a Customer or, where applicable, direct by a Client, in each case using the Services for the Purpose.

Data Migration Fees: the fees payable by the Customer to SWIFT ONBOARD in relation to the required data migration element (if any) of the Training, Implementation and Configuration Services as more particularly set out in the Order Form.

Data Protection Law:

(a) to the extent that UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data;

(b) to the extent that EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or SWIFT ONBOARD is subject, which relates to the protection of personal data.

Documentation: the document(s) made available to the Customer by SWIFT ONBOARD online (which can be accessed at the Website) or which are otherwise made available to the Customer and which set out a description of the Services and the user instructions for the Services.

DPA 2018: Data Protection Act 2018 (and regulations made thereunder).

Due Date: the date on which payment of any charges which are to be paid by the Customer under the contract must be paid to SWIFT ONBOARD.

Effective Date: the date of the Order Form.

End Client User: those clients of the Customer to which the Customer provides services and who are authorised by the Customer to use SWIFT ONBOARD Pay and Bill via the Customer’s SWIFT ONBOARD Pay and Bill account in order to authorise relevant timesheets and payment in respect of those services.

EU GDPR: the General Data Protection Regulation ((EU) 2016/279).

Fees: the fees payable by the Customer for the Services and any other services to be provided by SWIFT ONBOARD pursuant to the contract.

Go Live: the date on which the Services will be available for use by the Customer other than for testing and training purposes.

Initial Subscription Term: the initial term of the contract as set out in the Order Form.

Limited Company Client: a company which retains the services of the Customer in relation to the provision of accounting services.

Minimum Subscription Fee: where set out in the Order Form, the minimum monthly Subscription Fees payable by the Customer to SWIFT ONBOARD as such fee is set out in the Order Form

SWIFT ONBOARD: SWIFT ONBOARD Limited (Company number: 14969701).

SWIFT ONBOARD Account: an account with a unique username and password which is dedicated to the Customer or a Client and which enables the Customer for its own use or on behalf of a Client (as the case may be) or, where applicable, a Client directly to use SWIFT ONBOARD Accounting for the Purpose.

SWIFT ONBOARD Pay and Bill Account: an account with a unique username and password which is dedicated to the Customer and which enables the Customer for its own use to use SWIFT ONBOARD Pay and Bill for the Purpose.

SWIFT ONBOARD API: the software interface services developed by SWIFT ONBOARD which enables the Services to interact with third party applications.

SWIFT ONBOARD Disaster Recovery Standby Services or SWIFT ONBOARD DRSS: the provision of standby services in relation to a Service readily available for use by the Customer upon the giving of agreed notice to SWIFT ONBOARD, to support the Customer’s existing systems for a limited period as agreed by the parties and to be used when the Customer’s existing system is unavailable for use for any reason, as such standby services are provided by SWIFT ONBOARD from time to time as more particularly described in the Documentation and the Order Form.

SWIFT ONBOARD Accounting: the accounting subscription services specifically tailored for Limited Company Clients provided by SWIFT ONBOARD from time to time as more particularly described in the Documentation.

SWIFT ONBOARD Pay and Bill: the timesheet and expenses approval subscription services provided by SWIFT ONBOARD from time to time as more particularly described in the Documentation.

SWIFT ONBOARD Payroll: the payroll and accounting subscription services provided by SWIFT ONBOARD from time to time as more particularly described in the Documentation.

SWIFT ONBOARD Software: the online software applications provided by SWIFT ONBOARD as part of the Services.

Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.

Order Form: subject to clause 4.1, the order form signed by the parties setting out details of the contract and containing the Customer’s consent to these Terms and which includes, but is not limited to, details of the Initial Subscription Term, the Fees payable by the Customer in relation to each of the Services, details of the Services to be purchased by the Customer and any additional services to be provided by SWIFT ONBOARD pursuant to the contract with associated Fees.

Personal Data: has the meaning given to it at clause 6.1.

Platform and Support Services Fee: where set out in the Order Form, in relation to the Services, the platform and maintenance fee set out in the Order Form and which is payable by the Customer with effect from the Effective Date.

Privacy Policy: SWIFT ONBOARD’s privacy policy which is displayed on the Website from time to time and which confirms the categories of personal data which SWIFT ONBOARD collects from the Customer, Clients and Authorised Users in connection with their use of the Service, the purposes for which such personal data is used by SWIFT ONBOARD, the parties with whom SWIFT ONBOARD shares such personal data, any transfers of such personal data outside the EEA and the security measures which SWIFT ONBOARD has implemented and maintains in order to safeguard such personal data against unauthorised access and use.

Project Plan: the project plan agreed by the parties setting out the timetable for Go Live, the Agreed Go Live Date and the responsibilities of the parties in relation to Go Live.

Purpose: the use by the Customer (for itself and/or its Clients) and its Authorised Users to access the SWIFT ONBOARD Software on their internet enabled device and:

(a) view real time financial information, raise invoices, receive and generate financial reports (including cash flow, profit and loss accounts and balance sheets) and calculate tax liabilities in relation to SWIFT ONBOARD Payroll and SWIFT ONBOARD Accounting; and

(b) manage timesheets, invoices and expenses in relation to SWIFT ONBOARD Pay and Bill.

Renewal Period: the period described in clause 17.1.

Security Policy: SWIFT ONBOARD’s security policy as displayed on the Website from time to time.

Service Credit: the service credit payable by SWIFT ONBOARD for failing to meet a Service Level and as more particularly set at Schedule 2 and Service Credits shall be construed accordingly.

Services: means any or all of the following subscription services made available by SWIFT ONBOARD to the Customer pursuant to the contract from time to time during the Subscription Term by accessing such services via the Customer’s and/or its Client’s unique user name and password combination:

(a) SWIFT ONBOARD Accounting;

(b) SWIFT ONBOARD Payroll;

(d) SWIFT ONBOARD DRSS,

and Service shall mean any of such Services.

SLA: the service level agreement which is set out in Schedule 2 (as such service level agreement may be supplemented or varied from time to time in accordance with these Terms) and Service Level shall mean any of the service levels set out in the SLA.

Statement of Work: each statement of work which is agreed in writing and signed by the parties from time to time for Consultancy Services or any other services or deliverables which are specified and agreed in such statement of work and Statements of Work shall be construed accordingly.

Statement of Work Fees: the fees payable for the services to be provided by SWIFT ONBOARD as set out in a Statement of Work and which shall be calculated with reference to the rates set out in the Order Form.

Statement of Work Services: in relation to a Statement of Work the services that SWIFT ONBOARD has agreed to provide to the Customer as more particularly set out in that Statement of Work.

Subscription Fees: means the higher of:

(a) the subscription fees payable by the Customer to SWIFT ONBOARD for the User Subscriptions in accordance with clause 10, as such subscription fees are set out in the Order Form and subject to SWIFT ONBOARD’s right to increase such subscription fees:

in accordance with clause 10.8 (CPI Increase); and
after expiry of the Initial Subscription Term in accordance with clause 10.9; and

(b) where applicable, the Minimum Subscription Fee,

and where there is no Minimum Subscription Fee applicable to a Customer, the Subscription Fees shall be as stated at paragraph (a) above.

Subscription Term: has the meaning given in clause 17.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Request: a request for support in relation to any problems or issues with the Services made by raising a ticket with the SWIFT ONBOARD helpdesk strictly in accordance with the Support Services Policy.

Support Services Policy: SWIFT ONBOARD’s policy for providing support in relation to the Services as displayed on the Website from time to time.

Termination Sum: has the meaning given to it at clause 17.4(g).

The Contract: means:

(a) the Order Form;

(b) Statements of Work (if any); and

These Terms: these terms and conditions as amended by SWIFT ONBOARD from time to time.

Third Party Services: means any services which are provided to the Customer or a Client by a third party and which are not provided directly by SWIFT ONBOARD as part of the Services.

Third Party Sites: has the meaning given to it at clause 7.1.

Third Party Terms: the terms and conditions and privacy policies for any Third Party Services which the Customer accepts in connection with the Customer’s use of Third Party Services which SWIFT ONBOARD informs the Customer of from time to time.

Training, Implementation and Configuration Services: the training, implementation and configuration services in relation to the Services including, where agreed, any services in relation to data migration, agreed to be provided by SWIFT ONBOARD to the Customer pursuant to the contract.

Training, Implementation and Configuration Fees: the fees payable by the Customer to SWIFT ONBOARD under the contract for the Training, Implementation and Configuration Services to enable Go Live as such fees are set out in the Order Form.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

User Subscriptions: the user subscriptions in relation to the Services as more particularly described at Schedule 1 and which are purchased by the Customer pursuant to the contract in relation to a Service agreed to be provided by SWIFT ONBOARD pursuant to the contract and which entitles the Customer to access and use that Service and the Documentation for the Purpose on its own behalf and/or on behalf of and for the benefit of its Clients (as the case may be).

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

Website: means the website which can be found at https://swiftonboard.com/ (or any other URL which SWIFT ONBOARD notifies to the Customer from time to time either in writing (including by e-mail) or by publishing details on the Website).

1.2 The Schedules shall form part of, and are incorporated into, the contract.

1.3 Clause, schedule and paragraph headings shall not affect the interpretation of the contract.

1.4 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 A reference to a statute or statutory provision is a reference to it as it is amended, extended or re-enacted from time to time provided that, as between the parties, no such amendment, extension or re-enactment made after the date of the contract shall apply for the purposes of the contract if and to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of, any party.

1.9 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.10 A reference to writing or written excludes faxes and e-mail, unless otherwise expressly stated in the contract.

1.11 References to clauses and Schedules are to the clauses and Schedules of the contract; references to paragraphs are to paragraphs of the relevant Schedule to the contract.

1.12 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of:

(a) another person (or its nominee) by way of security or in connection with the taking of security; or

(b) its nominee.

For the purposes of determining whether a limited liability partnership is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be interpreted so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

1.13 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.14 A reference to the contract shall be a reference to the contract as is varied from time to time.

2. Varying these Terms

Save in relation to the Subscription Fees set out in the Order Form and which, subject to increase in accordance with clause 10.8 (CPI Increase), shall apply for the duration of the Initial Subscription Term, the Customer agrees that SWIFT ONBOARD may vary these Terms from time to time and the Customer agrees to accept any changes made to these Terms as such terms can be found on the Website from time to time. SWIFT ONBOARD may advise the Customer in writing of any proposed changes to these Terms and the Customer should ensure that it reviews the terms as found on the Website regularly so that it is aware of any changes made to these Terms.

3. User Subscriptions – SWIFT ONBOARD Accounting

3.1 If the Customer applies for a SWIFT ONBOARD Account to be created on behalf of a Client or the Customer uses a SWIFT ONBOARD Account or SWIFT ONBOARD Accounting on behalf of or for the benefit of a Client, the Customer shall ensure that:

(a) it has received the prior written authorisation of the Client to open a SWIFT ONBOARD Account and use the SWIFT ONBOARD Account and SWIFT ONBOARD Accounting on behalf of and for the benefit of the Client (which shall include making the Client aware before the Client provides such consent of the terms and conditions set out in the contract including in particular, any conditions regarding collection and use of the Client’s data in accordance with the contract and any applicable Third Party Terms);

(b) it has the irrevocable authority to act as the Client’s agent in respect of the Customer’s access to and use of the SWIFT ONBOARD Account and SWIFT ONBOARD Accounting including the right to receive and use the Client’s unique user name and password to access the Website where applicable, to access each Client’s SWIFT ONBOARD Account, to use SWIFT ONBOARD Accounting for the benefit of the Client and to make decisions on behalf of the Client regarding access to and use of Third Party Sites, Third Party Services, Third Party Terms and use of the SWIFT ONBOARD API);

(c) it has received a written waiver from the Client pursuant to which each Client acknowledges that it is aware of the terms and conditions of the contract, that it appoints the Customer to use SWIFT ONBOARD Accounting on the Client’s behalf (and at the sole risk of the Client) and shall waive any rights or remedies which it may have against SWIFT ONBOARD to the extent that such rights or remedies arise from any breach by the Customer of the contract and shall be bound by the limitations and exclusions of SWIFT ONBOARD’s liability as set out in the contract as if the Client were a party to the contract,

and following a written request from SWIFT ONBOARD, the Customer shall provide copies of such authorisations and waivers to SWIFT ONBOARD.

3.2 SWIFT ONBOARD reserves the right, at its absolute discretion, not to accept an application to create a SWIFT ONBOARD Account including in circumstances where there is a technical constraint, legal or regulatory reason or commercial reason such that SWIFT ONBOARD is unable or unwilling to provide SWIFT ONBOARD Accounting to or for the benefit of the Client. No charge will be made by SWIFT ONBOARD where an application for a SWIFT ONBOARD Account is declined. SWIFT ONBOARD does not accept any obligation to provide reasons or enter into correspondence or communications with the Customer (or any Client) regarding any application for a SWIFT ONBOARD Account which SWIFT ONBOARD chooses to decline.

3.3 At all times during the Subscription Term, the Customer shall (and shall procure that the Client shall) ensure that Client details which are submitted to SWIFT ONBOARD using SWIFT ONBOARD Accounting are kept up-to-date, accurate and complete and that any changes are made as soon as reasonably practicable following any change. The Customer acknowledges that it can add or change such information using the ‘edit’ function on the ‘Company Details’ or ‘People’ pages of the Website.

3.4 The Customer acknowledges and agrees that each SWIFT ONBOARD Account is to be used by or for the benefit of a single Client only and the Customer shall not use any SWIFT ONBOARD Account for the benefit of multiple Clients. In the event that SWIFT ONBOARD, acting reasonably, believes that a SWIFT ONBOARD Account is being used for the benefit of multiple Clients, it shall have the right to suspend SWIFT ONBOARD Accounting, terminate the contract and/or to continue to perform its obligations under the contract subject to the Customer paying charges for SWIFT ONBOARD Accounting which have been used for the benefit of multiple Clients.

3.5 In relation to each SWIFT ONBOARD Account, the Customer undertakes that:

(a) where applicable, each Client shall be provided with a secure password for each Client’s use of SWIFT ONBOARD Accounting (which the Customer shall ensure the Client permits SWIFT ONBOARD to provide to the Customer for use on behalf of the Client) and the Customer shall procure that the Client shall change the password no less frequently than every 90 days and shall keep the password confidential;

(b) it shall maintain a written, up to date list of current Clients and provide such list to SWIFT ONBOARD within 1 Business Day of SWIFT ONBOARD’s written request at any time or times;

(c) it shall permit SWIFT ONBOARD to audit SWIFT ONBOARD Accounting, the SWIFT ONBOARD Accounts and the Customer’s and (where applicable) each Client’s use of SWIFT ONBOARD Accounting and the SWIFT ONBOARD Accounts in order to establish SWIFT ONBOARD Account usage and the name and password of each Client. Such audit may be conducted no more than once per quarter, at SWIFT ONBOARD’s expense, and this right shall be exercised with no less than two (2) Business Days’ notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(d) if any of the audits referred to in clause 3.5(c) reveal that SWIFT ONBOARD Accounting has been provided for the benefit of any individual who is not a Client, then without prejudice to SWIFT ONBOARD’s other rights, the Customer shall promptly disable any access such individual has to SWIFT ONBOARD Accounting (including passwords) and SWIFT ONBOARD shall not provide SWIFT ONBOARD Accounting for the benefit of (including the issuing of any new passwords to) any such individual; and

(e) if any of the audits referred to in clause 3.5(c) reveal that the Customer has underpaid Subscription Fees to SWIFT ONBOARD, then without prejudice to SWIFT ONBOARD’s other rights and remedies, the Customer shall pay to SWIFT ONBOARD an amount equal to such underpayment as calculated in accordance with the charges set out in the Order Form within five (5) Business Days of the date of SWIFT ONBOARD’s demand.

4. Purchase of and right to use the Services

4.1 As at the Effective Date, the Customer has agreed to purchase the Services and which SWIFT ONBOARD has agreed to make available to the Customer during the Subscription Term as set out in the Order Form. Where the Customer wishes to purchase additional Services during the Subscription Term, it shall notify SWIFT ONBOARD in writing and, if SWIFT ONBOARD agrees to make available such additional Services to the Customer, SWIFT ONBOARD shall either confirm in writing the availability of such additional Services or shall provide a Statement of Work in relation to such additional Services (as the case may be) detailing the additional Services agreed to be made available by SWIFT ONBOARD to the Customer on the terms of the contract.The Fees for all Services and other services to be provided pursuant to the contract are as set out in the Order Form or the applicable Statement of Work (as the case may be).

4.2 In consideration of the Customer paying the applicable Platform and Support Services Fee and Subscription Fees (and subject at all times to the Customer’s compliance with the restrictions set out in this clause 4 and the Customer’s compliance with the other terms and conditions of the contract and any applicable Third Party Terms), SWIFT ONBOARD hereby grants to the Customer a personal, non-exclusive, non-transferable, revocable licence to the Customer which permits the Customer (and its Authorised Users) to access and use the Services and the Documentation solely for the Purpose and solely for the benefit of and on behalf of itself and/or each Client (as the case may be) during the Subscription Term only. The Customer shall also be entitled to permit the Affiliates to use the Services and Documentation solely for the Purpose and solely for the benefit and on behalf of itself and/or their own Clients during the Subscription Term to the same extent as the Customer, provided always that the Customer shall at all times be responsible for the acts and omissions of such Affiliates and payment of all amounts (including the applicable Platform and Support Services Fee and the Subscription Fees) in relation to Affiliates (notwithstanding any agreement to invoice the Affiliates directly). SWIFT ONBOARD shall be entitled to suspend access to the Services (or any of them) and Documentation by any Affiliate upon providing written notice to the Customer.

4.3 The Customer acknowledges and agrees that:

(a) it is not granted any right to sub-licence the rights which are granted to it by the Supplier in clause 4.1;

(b) to the extent that Authorised Users have been granted the right to use the Services and the Documentation this right shall only be for the Purpose;

(c) it does not have, (nor does any Client have) any right or interest in the underlying source code which is used to deliver the Services and the rights granted to the Customer are limited to a right to access the Services and Documentation using each allocated user name and password, subject to the terms of the contract; and

(d) with respect to any Affiliates which it allows to use the Services and Documentation (pursuant to clause 4.1), the Customer shall ensure that such Affiliates are made aware of the terms of the contract, including any applicable Third Party Terms, and shall be responsible for ensuring that such Affiliates comply with the obligations set out in the contract as though they were the Customer under the contract and a reference to the Customer in these Terms shall be construed accordingly.

4.4 The Customer shall not, and shall procure that its Clients and Authorised Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services or use the Services for any purpose that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; 10

(f) in a manner that is otherwise illegal or causes damage or injury to any person or property; or

(g) otherwise breaches: (i) the Acceptable Use Policy; or (ii) the terms of any contract to which SWIFT ONBOARD is a party and which is necessary for the performance of the Services; or (iii) any applicable Third Party Terms,

and SWIFT ONBOARD reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause (including the right to suspend access to and use of the Services entirely or partially for such period as SWIFT ONBOARD shall determine in its absolute discretion).

4.5 The Customer shall not, and shall procure that each Client and Authorised User shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion or by agreement in writing between the parties:

and except to the extent expressly permitted under the contract, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Website, the Services (including the software which enables the provision of the Services) and/or Documentation (as applicable) in any form or media or by any means; or
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services (to the extent that the Services are software-enabled); or

(b) use the Services and/or Documentation to provide services to third parties (save for the provision of services to Clients for the Purpose); or

(c) subject to clause 26.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or

(d) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4.

4.6 The Customer shall ensure that there is no unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any unauthorised access or use, the Customer shall immediately notify SWIFT ONBOARD and co-operate with SWIFT ONBOARD to mitigate the consequences of any unauthorised access or use (including prompt and diligent compliance with any reasonable instructions of SWIFT ONBOARD).

4.7 The Customer acknowledges that the Customer shall only be permitted to allow its Clients to have access to the Services and Documentation via a unique user name and password to access the Website, and the Customer shall not be entitled to permit any other of its clients to have such access. Notwithstanding this, the Services may be used for the benefit of all Clients.

5. Services

5.1 In consideration of:

(a) the payment of the Training, Implementation and Configuration Fees, SWIFT ONBOARD shall provide the Training, Implementation and Configuration Services;

(b) the payment of the Platform and Support Services Fee and the Subscription, SWIFT ONBOARD shall, during the Subscription Term:

provide the Services and make available the Documentation to the Customer on and subject to the terms of the contract;
provide support services in accordance with the Support Services Policy during Normal Business Hours;
use its commercially reasonable endeavours to perform the Services in accordance with the SLA;
provide reasonable use of SWIFT ONBOARD’s customer support line (to be determined at the sole discretion of SWIFT ONBOARD). If the use of SWIFT ONBOARD’s support line is deemed excessive (determined at the sole discretion of SWIFT ONBOARD), additional fees will apply and these will be applied using the fees set out in in the Order Form;

5.2 SWIFT ONBOARD shall use commercially reasonable endeavours to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for:

(a) planned maintenance carried out during SWIFT ONBOARD’s maintenance window (i.e. anytime outside Normal Business Hours);

(b) unscheduled maintenance performed during Normal Business Hours, provided that SWIFT ONBOARD has used commercially reasonable endeavours to give the Customer at least six (6) Normal Business Hours’ notice in advance; and

(c) unscheduled emergency maintenance in respect of any security or other emergency reasons including events which are outside SWIFT ONBOARD’s reasonable control.

5.3 SWIFT ONBOARD may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at SWIFT ONBOARD’s then current rates.

5.4 SWIFT ONBOARD may provide the Customer with consulting, training, development and other professional and consultancy services as specifically set forth in a Statement of Work.

5.5 Unless otherwise specified in a Statement of Work, SWIFT ONBOARD hereby retains all right, title and interest in and to any deliverables which are provided under a Statement of Work including any and all intellectual property rights in such deliverables. SWIFT ONBOARD grants to the Customer a non-exclusive, non-transferable and perpetual licence to use any deliverables created under a Statement of Work in conjunction with the Services for its own internal business purposes (subject to SWIFT ONBOARD having received full payment for the deliverables in accordance with the charges set out in the Statement of Work).

5.6 By agreeing to the these Terms and using the Services in relation to the filing of a VAT return (on its behalf and/or on behalf of a Client), the Customer agrees (on its behalf and/or behalf of each such Client) that SWIFT ONBOARD Accounts may, in the performance of such Services, pass information to HMRC, and receive information from HMRC, on behalf of the Customer and/or such Client.

6. Customer data

6.1 In this clause 6, “controller”, “data controller”, “data processor”, “data subject”, “personal data”, “process”, “processor” and “special categories of data” shall have the meaning given to them by Data Protection Law.

6.2 SWIFT ONBOARD’s Privacy Policy is incorporated into the contract by reference and applies to the Services. The Customer acknowledges and agrees that Customer Data shall be collected and used by SWIFT ONBOARD in accordance with the Privacy Policy and shall ensure that each Client, Contractor User and End Client User (as the case may be) is aware of the Privacy Policy and provides its prior written consent to the Customer which shall confirm that that party has seen and agrees to that party’s personal data being used by SWIFT ONBOARD in accordance with the Privacy Policy.

6.3 The Customer, as data controller/controller appoints SWIFT ONBOARD as a data processor/processor to process the personal data described in the contract (the Data) for the purposes described in the contract (the Permitted Purpose). Each party shall comply with the obligations that apply to it under Data Protection Law.

6.4 The Customer shall not disclose (and shall not permit any data subject to disclose) any sensitive personal data/special categories of personal data to SWIFT ONBOARD for processing.

6.5 SWIFT ONBOARD shall not transfer the Data outside of the European Economic Area (EEA) unless it has taken such measures as are necessary to ensure the transfer is in compliance with Data Protection Law. Such measures may include transferring the Data to a recipient in a country that the European Commission has decided provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorisation in accordance with Data Protection Law, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission.

6.6 SWIFT ONBOARD shall ensure that any person it authorises to process the Data (an Authorised Person) shall protect the Data in accordance with SWIFT ONBOARD’s confidentiality obligations under the contract.

6.7 SWIFT ONBOARD shall implement technical and organisational measures to protect the Data (i) from accidental or unlawful destruction, and (ii) loss, alteration, unauthorised disclosure of, or access to the Data (a Security Incident).

6.8 The Customer consents to SWIFT ONBOARD engaging third party subprocessors to process the Data for the Permitted Purpose provided that: (i) SWIFT ONBOARD maintains an up-to-date list of its subprocessors and shall notify the Customer of any change in subprocessors at least 10 Business Days’ prior to any such change; (ii) SWIFT ONBOARD imposes data protection terms on any subprocessor it appoints that require it to protect the Data to the standard required by Data Protection Law; and (iii) SWIFT ONBOARD remains liable for any breach of this clause that is caused by an act, error or omission of its subprocessor. If the Customer objects to a proposed sub-processor on the data protection compliance grounds, it shall notify SWIFT ONBOARD within 5 Business Days of receipt of SWIFT ONBOARD’s notice and shall specify the grounds on which it objects and the Customer may terminate the contract by serving notice within 10 Business Days of SWIFT ONBOARD’s notice, subject to payment of the Termination Sum. As at the Effective Date, SWIFT ONBOARD processes personal data of its clients using AWS Europe as its sub-Processor and the Customer acknowledges and agrees that SWIFT ONBOARD shall be entitled to appoint AWS Europe as its sub-processor to process personal data in respect of which the Customer is the controller under the contract during the Subscription Term.

6.9 SWIFT ONBOARD shall provide reasonable and timely assistance to the Customer (at the Customer’s expense) to enable the Customer to respond to: (i) any request from a data subject to exercise any of its rights under Data Protection Law (including its rights of access, correction, objection, erasure and data portability, as applicable); and (ii) any other correspondence, enquiry or complaint received from a data subject, regulator or other third party in connection with the processing of the Data. In the event that any such request, correspondence, enquiry or complaint is made directly to SWIFT ONBOARD, SWIFT ONBOARD shall promptly inform the Customer providing full details of the same.

6.10 If SWIFT ONBOARD believes or becomes aware that its processing of the Data is likely to result in a high risk to the data protection rights and freedoms of data subjects, it shall inform the Customer and provide reasonable cooperation to the Customer (at the Customer’s expense) in connection with any data protection impact assessment that may be required under Data Protection Law.

6.11 If SWIFT ONBOARD becomes aware of a confirmed Security Incident, SWIFT ONBOARD shall:

(a) inform the Customer without undue delay and shall provide reasonable information and cooperation to the Customer so that the Customer can fulfil any data breach reporting obligations it may have under (and in accordance with the timescales required by) Data Protection Law; and

(b) take any reasonably necessary measures and actions to remedy or mitigate the effects of the Security Incident; and

6.12 Upon termination or expiry of the contract, SWIFT ONBOARD shall (at the Customer’s election) destroy or return to the Customer all Data in its possession or control. This requirement shall not apply to the extent that SWIFT ONBOARD is required by applicable law to retain some or all of the Data, or to Data it has archived on back-up systems, which Data SWIFT ONBOARD shall securely isolate and protect from any further processing except to the extent required by such law.

6.13 On request by the Customer, SWIFT ONBOARD shall:

(a) contribute to audits and inspections of any written records which SWIFT ONBOARD maintains in respect of its compliance with this clause 6 by permitting the Customer to audit and inspect such records; and

(b) respond to any written audit questions submitted to it by the Customer in respect of SWIFT ONBOARD’s compliance with this clause 6,

provided that the Customer’s rights under this clause 6.13 shall be exercised no more than once per Contract Year and any inspection shall take place during Normal Business Hours on Business Days and the Customer shall take all reasonable measures to prevent any unnecessary disruption to SWIFT ONBOARD’s operations.

6.14 The Customer acknowledges and agrees that internet transmissions are never completely private or secure and that any message or information which is sent or received using the Services may be read or intercepted by others, even if a particular transmission is encrypted.

6.15 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data (and shall procure that each Client shall maintain Customer Data so that it remains accurate, complete and up-to-date at all times).

6.16 SWIFT ONBOARD shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy as such document may be amended by SWIFT ONBOARD in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for SWIFT ONBOARD to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SWIFT ONBOARD in accordance with the archiving procedure described in its Back-Up Policy. SWIFT ONBOARD shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by SWIFT ONBOARD to perform services related to Customer Data maintenance and back-up). The Customer shall ensure that each Client is aware of SWIFT ONBOARD’s Back-Up Policy and obligations with regard to the restoration of Customer Data.

6.17 SWIFT ONBOARD shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security of the Customer Data, as such documents may be amended from time to time by SWIFT ONBOARD in its sole discretion.

6.18 The Customer consents (on behalf of itself and each Client) to SWIFT ONBOARD collecting and using technical information about the devices and related software, hardware and peripherals for Services that are internet-based or wireless to improve its products and to provide any Services to the Customer.

7. Third party providers

7.1 The Services may contain links to other independent third-party websites (Third Party Sites). Third Party Sites are not under SWIFT ONBOARD’s control, and SWIFT ONBOARD is not responsible for and does not endorse their content or their privacy policies (if any). The Customer will need to make its own independent judgement regarding your interaction with any Third Party Sites, including the purchase and use of any products or services accessible through them.

7.2 SWIFT ONBOARD makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third Party Site, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any Third Party Site is between the Customer and the relevant third party, and not SWIFT ONBOARD. SWIFT ONBOARD recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant Third Party Site. SWIFT ONBOARD does not endorse or approve any Third Party Site nor the content of any Third Party Site.

7.3 The Services can interact with third party applications where the Customer enables the SWIFT ONBOARD API. Where the Customer enables the SWIFT ONBOARD API, use of the SWIFT ONBOARD API is subject to the following conditions:

(a) where applicable, the Customer has received the express prior written permission of the Client (and has notified the Client of the conditions relating to use of the SWIFT ONBOARD API as set out in the contract);

(b) the Customer acknowledges and agrees that (and shall procure that the Client acknowledges and agrees that) any third party application which the Customer selects to access the Services has the ability to access to Customer Data and is outside of SWIFT ONBOARD’s control;

(c) before enabling the SWIFT ONBOARD API and using any third party application, it is the sole responsibility of the Customer and the Customer shall (and, where applicable, shall procure that the Client shall) carefully assess whether or not the Customer (and, where applicable, the Client) understands and is willing to accept the risks associated with use of each third party application, the terms and conditions on which the third party application will be provided (including any privacy policy which sets out the manner in which the third party will collect and use Customer Data) and any assurances provided by the third party regarding the Customer’s (and the Client’s) privacy and security.

7.4 The Customer acknowledges and agrees that it is the Customer’s decision as to whether or not it enables the SWIFT ONBOARD API and that the Customer has the right to disable the SWIFT ONBOARD API at any time by modifying the preferences for the relevant SWIFT ONBOARD Account.

7.5 As third party applications which the Customer (and Client) may use to access the Services are provided by third parties and used at the election of the Customer (and, where applicable, the Client), SWIFT ONBOARD does not accept any responsibility for any loss suffered by the Customer (and/or where applicable, the Client) as a result of the Customer’s (or, where applicable, the Client’s) use of any third party application to access the Services.

8. Supplier’s obligations

8.1 SWIFT ONBOARD shall provide the Services and any other services supplied under the contract substantially in accordance with the Documentation with reasonable skill and care.

8.2 Clause 8.1 shall not apply to the extent of any non-conformance which is caused by:

(a) use of the Services and any other services supplied under the contract contrary to SWIFT ONBOARD’s instructions;

(b) modification or alteration of the Services or any other services supplied under the contract by any party other than SWIFT ONBOARD or SWIFT ONBOARD’s duly authorised contractors or agents;

(d) use of the Services for any purpose other than the Purpose.

8.3 If the Services or any other services supplied under the contract do not conform with clause 8.1, SWIFT ONBOARD will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of clause 8.1.

8.4 SWIFT ONBOARD:

(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

(b) 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.5 The contract shall not prevent SWIFT ONBOARD from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the contract.

8.6 SWIFT ONBOARD warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the contract.

9. Customer’s obligations

9.1 The Customer shall (and shall procure that each Authorised User and each Client shall):

(a) provide SWIFT ONBOARD with: (i) all necessary co-operation in relation to the contract; and

all necessary access to such information as may be required by SWIFT ONBOARD,

in order to provide the Services, the Training, Implementation and Configuration Services, the Statement of Work Services and any other services to be supplied under the contract, including Customer Data, security access information and configuration services;

(b) comply with all applicable laws and regulations with respect to its activities under the contract;

(c) carry out all other Customer and Client responsibilities set out in the contract and the Project Plan in a timely and efficient manner (and SWIFT ONBOARD shall be relieved from the performance of and liability for breach of its obligations to the extent attributable to the Customer’s breach of the contract or failure to perform the Customer responsibilities in a timely and efficient manner);

(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for SWIFT ONBOARD, its contractors and agents to perform their obligations under the contract, including without limitation the Services;

(e) ensure that its network and systems comply with the relevant specifications provided by SWIFT ONBOARD from time to time; and

(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to SWIFT ONBOARD’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.

9.2 The Customer shall:

(a) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the contract and shall be responsible for any Authorised User’s breach of the contract;

(b) where applicable, only access a Client’s SWIFT ONBOARD Account by using a password and username which that Client has expressly authorised the Customer to use in writing;

(c) only use the Services on behalf of the Client whose SWIFT ONBOARD Account the Customer is accessing and solely for money management purposes relating to that Client’s own business which are legal;

(d) ensure that each Client is aware of the terms and conditions and policies subject to which the Services are made available before using them on behalf of a Client (including Third Party Services);

(e) procure an irrevocable written authorisation from each Client which grants the Customer the right to use the Services on and subject to the terms and conditions of the contract for the benefit of the Client and provide a copy of the Client’s written authorisation to SWIFT ONBOARD upon request (and shall procure that the Client shall do all things which are required by SWIFT ONBOARD or a third party to comply with the terms of the contract including the grant of any necessary powers of attorney); and

(f) ensure that each Client complies with the terms of the contract applicable to the Customer as if it were a party to it.

9.3 The Customer shall not (and shall procure that Authorised Users and the Client shall not);

(a) do anything which could reasonably be expected to damage, disable, overburden, or materially impair the Services or the Website or which is likely to interfere with any other party’s use or enjoyment of the Services;

(b) question or dispute SWIFT ONBOARD’s ownership of the intellectual property rights in the Services or any other services supplied under the contract, the Documentation and the Website; and/or

(c) employ the services of any employee, contractor, consultant or any associates of SWIFT ONBOARD either directly or through any third party to undertake work of a similar nature during the term of the contract or on termination of the contract and thereafter for a period of 24 months.

10. Charges and payment

10.1 The Customer shall pay to SWIFT ONBOARD:

(a) the Training, Implementation and Configuration Fees in relation to the Training, Implementation and Configuration Services;

(b) the Platform and Support Services Fee;

(d) the Statement of Work Fees in relation to the Statement of Work Services; and

(e) expenses incurred in relation to the Services and any other services provided in accordance with the contract,

in accordance with this clause 10.

10.2 The:

(a) Platform and Support Services Fee shall be due and payable with effect from the date specified on the Order Form and shall be paid in relation to each Billing Period (or part thereof) on the date on which Subscription Fees are payable in accordance with clause 10.2(c) (the Due Date);

(b) Training, Implementation and Configuration Fees shall be paid within 7 days of the date of invoice (the Due Date) and SWIFT ONBOARD will generally raise an invoice for the Training, Implementation and Configuration Fees on the date of the Order Form;

(c) Subscription Fees shall be paid in relation to each Billing Period in arrear by the Customer by no later than 7 days of the date of invoice (the Due Date) and SWIFT ONBOARD will generally raise an invoice for the Subscription Fees on the Monday following the first Friday of each calendar month; (Note: a weekly payslip covers 1 pay interval, i.e. 1 week of tax allowances and a monthly payslip covers 4 or 5 pay intervals, i.e. 4 or 5 weeks of tax allowances, depending on the Billing Period) and

(d) Statement of Work Fees shall be paid on the date specified in the relevant Statement of Work (and where no date is specified, 25% of such fees shall be paid on signature of the Statement of Work and the remainder shall be paid within 7 days of the date on which SWIFT ONBOARD notifies the Customer that the relevant services have been completed or the deliverables have been provided) (in each case, the Due Date),

and all fees due from the Customer under the contract shall be paid in full and received in cleared funds by SWIFT ONBOARD on or before the Due Date without application of any right of set-off, counterclaim, deduction or abatement.

10.3 The Customer acknowledges and agrees that:

(a) the Subscription Fees shall be calculated as set out in the Order Form and in relation to each Billing Period in arrears based on the User Subscriptions during that Billing Period, subject always (where applicable) to the liability of the Customer to pay the Minimum Subscription Fee in relation to each Billing Period where such minimum fee is greater than the Subscription Fees for that Billing Period; and

(b) the Subscription Fees shall be payable from Go Live save where the Agreed Go Live Date is delayed as a result of the Customer’s negligence, failure to perform or delay in the performance of any of its obligations under the contract or by reason of a request from the Customer to delay Go Live, in which case SWIFT ONBOARD may, at its sole discretion, require the Customer to pay the Minimum Subscription Fees from the Agreed Go Live Date and/or pay such additional Training, Implementation and Configuration Fees as SWIFT ONBOARD considers appropriate (acting reasonably) to reflect additional time and costs incurred or to be incurred by SWIFT ONBOARD as a result of such delay.

10.4 The Customer acknowledges and agrees that payment of Fees by the Due Date is of the essence of the contract.

10.5 Any required travel, accommodation and subsistence expenses will be an additional expense payable by the Customer and will be agreed in advance between the Customer and SWIFT ONBOARD and added to the next invoice submitted by SWIFT ONBOARD in relation to Subscription Fees and shall be payable in accordance with clause 10.2(c).

10.6 If SWIFT ONBOARD has not received payment on the Due Date, and without prejudice to any other rights and remedies of SWIFT ONBOARD:

(a) SWIFT ONBOARD may, without any obligation to notify or liability to the Customer, disable the Customer’s password, account and access to all or any part of the Services and SWIFT ONBOARD Account and/or SWIFT ONBOARD Pay and Bill Account (as the case may be) and SWIFT ONBOARD shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a weekly basis on such due amounts at a rate of 0.5% per week, commencing on the Due Date and continuing until fully paid, whether before or after judgment.

10.7 All amounts and fees stated or referred to in the contract:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 14.7(b), non-cancellable and non-refundable; and

(c) are exclusive of value added tax, which shall be added to SWIFT ONBOARD’s invoice(s) at the appropriate rate and paid in addition.

10.8 SWIFT ONBOARD will increase the Subscription Fees on 1st April each year during the Subscription Term in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period. Where a new contract is entered into during a financial year, the CPI increase will be prorated for the period beginning in the month following contract signature.

10.9 Subject to clause 10.8, the Subscription Fees and other rates or amounts set out in the Order Form are fixed for the Initial Subscription Term. After the Initial Subscription Term, the Subscription Fees and such rates will be as notified by SWIFT ONBOARD to the Customer (and in the absence of any notification, the Subscription Fees shall continue at the Customers existing pricing until such time as SWIFT ONBOARD notifies the Customer of the applicable changes).

11. Proprietary rights

11.1 The Customer acknowledges and agrees that SWIFT ONBOARD and/or its licensors own all intellectual property rights in the Services, any other services supplied under the contract and the Documentation. Except as expressly stated herein, the contract does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services, such services or the Documentation.

11.2 SWIFT ONBOARD warrants that it has all the rights in relation to the Services, any other services to be supplied under the contract and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the contract.

12. Confidentiality

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the contract. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the contract.

12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the contract.

12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

12.5 The Customer acknowledges that details of the Services, any other services supplied under the contract including, but not limited to, the Subscription Fees and charges payable in relation to such services and the results of any performance tests of the Services and any such services, constitute SWIFT ONBOARD’s Confidential Information.

12.6 SWIFT ONBOARD acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 This clause 12 shall survive termination of the contract, however arising.

12.8 No party shall make, or permit any person to make, any public announcement concerning the contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

13. Indemnity

13.1 The Customer shall defend, indemnify and hold harmless SWIFT ONBOARD against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with:

(a) the Customer’s use of the Services, any other services supplied under the contract, the Documentation and/or Third Party Services;

(b) any breach of the contract including any policies referred to in the contract (and including any claim made by or on behalf of a Client against SWIFT ONBOARD arising from the Customer’s breach of the contract), excluding any breach by SWIFT ONBOARD;

(d) any failure to comply with applicable laws or regulations, the requirements of any regulatory authority or any court Order, excluding any failure by SWIFT ONBOARD;

(e) the infringement of any third party rights (including the rights of any Client), other than by SWIFT ONBOARD; and/or

(f) any act or omission of the Customer or the Client which puts SWIFT ONBOARD in breach of applicable laws and regulations, the requirements of a regulatory authority, court order or in breach of any contract with any service provider which SWIFT ONBOARD contracts with to provide the Services or any other services provided under the contract,

provided that:

the Customer is given prompt notice of any such claim;
SWIFT ONBOARD provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
the Customer is given sole authority to defend or settle the claim.

13.2 SWIFT ONBOARD shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) SWIFT ONBOARD is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to SWIFT ONBOARD in the defence and settlement of such claim, at SWIFT ONBOARD’s expense; and

13.3 In the defence or settlement of any claim, SWIFT ONBOARD may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the contract immediately on notice in writing to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

13.4 In no event shall SWIFT ONBOARD, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than SWIFT ONBOARD; or

(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by SWIFT ONBOARD; or

(d) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from SWIFT ONBOARD or any appropriate authority.

13.5 Clauses 13.2, 13.3 and 14.7(b) state the Customer’s sole and exclusive rights and remedies, and SWIFT ONBOARD’s (including SWIFT ONBOARD’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14. Limitation of liability

14.1 The Customer acknowledges and agrees (and shall procure that the Client acknowledges and agrees) that:

(a) the Services have not been developed to meet the Customer’s or the Client’s individual requirements, and that it is therefore the Customer’s and the Client’s responsibility to ensure that the facilities and functions of the Services as described in the Documentation meet the Customer’s and the Client’s requirements;

(b) it is the Customer’s and each Client’s responsibility to ensure that any information which is submitted using the Services is backed-up or a copy retained and that the Services are not intended to act as the sole repository for all of the Customer’s and/or Client’s information;

(c) all information which is provided by the Services shall be checked by the Customer and the Client before acting or relying on it and the Services are not intended to be a substitute for professional accountancy and tax advice and the information provided by our Services does not constitute accountancy or tax advice;

(d) the Customer and each Client will at all times remain responsible for its compliance with all legal obligations in relation to the preparation and storage of the Customer’s and each Client’s accounting and tax records and filings with HMRC; and

(e) as the Services are software-enabled and provided over the internet, the Services are not error-free and may suffer from minor defects and bugs, will not be available on a 24/7/365 basis (and no guarantee is provided as to the availability, speed or performance of the Services) and SWIFT ONBOARD does not guarantee that the Services will be free from Viruses (but it will use industry standard software to detect and eradicate Viruses, where reasonably possible).

14.2 This clause 14 sets out the entire financial liability of SWIFT ONBOARD (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with the contract;

(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the contract.

14.3 Except as expressly and specifically provided in the contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. SWIFT ONBOARD shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to SWIFT ONBOARD by the Customer in connection with the Services, or any actions taken by SWIFT ONBOARD at the Customer’s direction;

(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the contract; and

14.4 Nothing in the contract excludes the liability of SWIFT ONBOARD:

(a) for death or personal injury caused by SWIFT ONBOARD’s negligence; or

(b) for fraud or fraudulent misrepresentation.

14.5 If SWIFT ONBOARD fails to comply with any of the Service Levels then, subject to the terms of the contract, the Customer shall become entitled to the Service Credit specified in Schedule 2 corresponding to the relevant failure. The parties acknowledge that each Service Credit is a genuine pre-estimate of the loss likely to be suffered by the Customer and not a penalty and the provision of a Service Credit shall be an exclusive remedy for a particular Service Level failure.

14.6 If SWIFT ONBOARD’s performance of its obligations under the contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay (including, but not limited to, any Service Credit, that would have been payable as a result of such prevention or delay).

14.7 Subject to clauses 14.3, 14.4 and 14.5:

(a) SWIFT ONBOARD shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any of the following losses or damage (howsoever arising):

loss of profits;
loss of business;
depletion of goodwill and/or similar losses or loss;
loss of, damage to or corruption of data or information;
fines (including fines levied by a regulatory authority or tax authority) or any costs, expenses or interest;
pure economic loss; or
any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the contract; and

(b) SWIFT ONBOARD’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the greater of:

£5,000 in each Contract Year; or
in each Contract Year:

(A) the total Subscription Fees paid or payable for the User Subscriptions in such Contract Year where such liability arises in connection with the performance or contemplated performance of the contract in relation to the Services; and

(B) where such liability arises in connection with the performance or contemplated performance of the contract in relation to services provided under the contract other than the Services, the total fees paid or payable for such services.

15. Suspension and cancellation of the Services

15.1 The Customer can close a SWIFT ONBOARD Account in relation to a particular Client at any time by notifying SWIFT ONBOARD in writing. Subject to the receipt of the Subscription Fees for the SWIFT ONBOARD Account for the current Billing Period, no further Subscription Fees will be billed for the closed SWIFT ONBOARD Account and no refund will be made of any Subscription Fees already billed and paid in respect of the closed SWIFT ONBOARD Account.

15.2 SWIFT ONBOARD may suspend access to or use of any or all of the Services or permanently cancel a SWIFT ONBOARD Account in the event that:

(a) the Customer or the Client fails to comply with:

the contract;
any of the policies referred to in the contract;
any Third Party Terms;

(b) if the continued use of any of the Services would result in SWIFT ONBOARD being in breach of:

any applicable laws, regulatory requirements, court Orders, the requirements of any regulatory authority or law enforcement agency;
any contract to which SWIFT ONBOARD is a party and which is necessary for the performance of the Services;

15.3 In respect of any suspension or cancellation by SWIFT ONBOARD pursuant to clause 15.2, no refund of any Subscription Fees for the SWIFT ONBOARD Account shall be paid (and the Customer shall be responsible for the payment of twelve (12) months’ fees for each suspended or cancelled SWIFT ONBOARD Account).

16. Non solicitation

16.1 The Customer shall not, without the prior written consent of SWIFT ONBOARD, at any time from the Effective Date until the expiry of 12 months after termination or expiry of the contract, solicit or entice away from the employment of SWIFT ONBOARD or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of SWIFT ONBOARD in relation to the provision of the Services at any time.

16.2 If the Customer breaches clause 16.1, the Customer agrees to pay on demand to SWIFT ONBOARD the sum equal to one-year’s salary of such employee or sub-contractor, (plus VAT if applicable), it being agreed by the parties that such sum represents a genuine pre-estimate of the loss that SWIFT ONBOARD would suffer in the event of such breach.

17. Term and termination

17.1 The contract shall, unless otherwise terminated as provided in this clause 17, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the contract shall be automatically renewed for successive periods of twelve (12) months or such successive periods as detailed on the Order Form (where applicable) (each a Renewal Period) and the Subscription Fees payable during any Renewal Period shall be as set out at clause 10.9 unless:

(a) either party notifies the other party of termination, in writing, at least 6 months before the end of the Initial Subscription Term or any Renewal Period (as the case may be), in which case the contract shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of the contract,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

17.2 Without affecting any other right or remedy available to it, either party may terminate the contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any other term of the contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

(b) 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;

(c) 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 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;

(d) 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;

(e) 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;

(f) 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;

(g) 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;

(h) 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 fourteen (14) days;

(i) 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 17.2(b) to clause 17.2(h) (inclusive);

(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

17.3 Without affecting any other right or remedy available to it, SWIFT ONBOARD may terminate the contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the contract on the Due Date;

(b) the Customer fails to comply with clause 3;

(d) the Customer (or a Client) fails to comply with the Third Party Terms;

(e) there is a Change of Control of the Customer; or

(f) the Customer:

has committed a crime; or
has become involved in or becomes associated with (whether directly or indirectly) any situation or activity (whether caused by the Customer or a third party (including but not limited to a Client)) which:

(A) tends in the reasonable opinion of SWIFT ONBOARD to have a negative effect on the reputation of SWIFT ONBOARD or any aspect of its business;

(B) would expose SWIFT ONBOARD or any aspect of its business to disrepute, scandal, ridicule or contempt, or would tend to shock, insult or offend the public in any territory in which SWIFT ONBOARD’s products or services are marketed;

(D) might affect the supply, successful sales and exploitation of the products or services of SWIFT ONBOARD,

and the Customer agrees that the occurrence of any situation as defined in sub-clauses 17.3(f)(i) and/or 17.3(f)(ii) shall be deemed to be a material breach of the contract in terms of clause 17.2(a) regardless of whether the Customer has caused the situation or not.

SWIFT ONBOARD’s decision on all matters arising under this clause shall be conclusive.

17.4 On termination of the contract for any reason:

(a) the Customer shall immediately cease to be able to access any of the Services or any other services supplied by SWIFT ONBOARD pursuant to the contract;

(b) the Customer shall immediately pay to SWIFT ONBOARD all of SWIFT ONBOARD’s outstanding unpaid invoices and interest and, without prejudice to clause 17.4(g), in respect of any services for which no invoice has been submitted, SWIFT ONBOARD may submit an invoice, which shall be payable immediately on receipt;

(c) all rights and licences granted under the contract shall immediately terminate (including any right to access and use the Services and each SWIFT ONBOARD Account and/or SWIFT ONBOARD Timesheet Account (as the case may be));

(d) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(e) SWIFT ONBOARD may destroy or otherwise dispose of or otherwise put beyond use any of the Customer Data in its possession or control unless SWIFT ONBOARD receives, no later than ten (10) days after the effective date of the termination of the contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data in CSV format. SWIFT ONBOARD shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by SWIFT ONBOARD in returning or disposing of Customer Data including, but not limited to, any manipulation of Customer Data and/or creation of subsets of such Customer Data as required by the Customer;

(f) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced; and

(g) without prejudice to any other rights or remedies of SWIFT ONBOARD, in the event of termination other than in accordance with clause 17.1(a) or by the Customer in accordance with clause 17.2, the Customer shall pay a Termination Sum, being the higher of 50% of :

the Subscription Fees which would have been paid for the remaining Subscription Term and which shall be calculated by using the highest Billing Period of Subscription Fees to date and multiplying this by the number of Billing Periods (or part thereof) remaining of the Initial Subscription Term or the current Renewal Period (as the case may be); and
the Platform and Support Services Fee which would have been paid for the remaining Subscription Term.

17.5 If any law, regulation or government or regulatory body requires SWIFT ONBOARD to retain any documents, material or Customer Data that SWIFT ONBOARD would otherwise be required to return or destroy, it will (so far as is lawfully possible) notify the Customer in writing of the retention requirements, giving details of the documents, materials and Customer Data it must retain and the legal basis for such retention and establishing a specific timeline for deletion or destruction once the retention requirement ends.

18. Communication between us

Save in relation to any notice to be served pursuant to the contract and to which clause 29 shall apply, the Customer may contact SWIFT ONBOARD by e-mail sent to [email protected] by prepaid post to SWIFT ONBOARD at Swift Onboard Ltd. Suite 3, Edwin Foden Business Centre, Moss Ln, Sandbach CW11 3AE. SWIFT ONBOARD will confirm receipt of this by contacting the Customer in writing, normally by e-mail. SWIFT ONBOARD may change the address for notice from time to time and will either notify the Customer of any change (normally by e-mail) or by publishing updated details on the Website.

19. Events outside our control

SWIFT ONBOARD shall have no liability to the Customer, an Affiliate or a Client under the contract if it is prevented from, hindered or delayed in or from performing its obligations under the contract, 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 SWIFT ONBOARD or any other party), failure of a utility service or transport or telecommunications network, unavailability of the internet network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

20. Conflict

If there is an inconsistency between:

(a) any of the provisions in the main body of the contract and the Schedules, the provisions in the main body of the contract shall prevail; and

(b)

the Order Form;
a Statement of Work; and
these Terms,

a term contained in a document higher in the list shall have priority over the one contained in a document lower in the list.

21. Waiver

No failure or delay by a party to exercise any right or remedy provided under the contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

22. Rights and remedies

Except as expressly provided in the contract, the rights and remedies provided under

the contract are in addition to, and not exclusive of, any rights or remedies provided by law.

23. Severance

23.1 If any provision (or part of a provision) of the contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

23.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

24. Further assurance

The Customer shall (and shall procure that each Client shall) diligently and promptly following SWIFT ONBOARD’s reasonable request, do all such things (including an obligation to co-operate in good faith with SWIFT ONBOARD and any third party which it nominates), perform all such acts and sign all such documents as SWIFT ONBOARD considers to be necessary for the Customer and each Client to comply with the terms of the contract and any Third Party Terms or which is required for SWIFT ONBOARD to comply with any lawful requirement of a regulatory authority or law enforcement agency, any court Order or the terms of any contract to which SWIFT ONBOARD is a party and which is necessary for the provision of the Services.

25. Entire agreement

25.1 The contract and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

25.2 Each of the parties acknowledges and agrees that in entering into the contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the contract or not) relating to the subject matter of the contract, other than as expressly set out in the contract.

26. Assignment

26.1 The Customer shall not, without the prior written consent of SWIFT ONBOARD, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the contract.

26.2 SWIFT ONBOARD 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 the contract.

27. No partnership or agency

Nothing in the contract 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).

28. Third party rights

28.1 Subject to clause 28.2, the contract does not confer any rights on any person or party (other than the parties to the contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

28.2 Each Client and each third party supplier of SWIFT ONBOARD (Permitted Third Party), shall have the right to enforce the terms of the contract against the Customer, provided that the consent of a Permitted Third Party shall not be required to amend the terms of the contract or to rescind the contract.

29. Notices

29.1 Any notice required to be given under the contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the contract (and where such notice is sent by the Customer, with a copy to the e-mail or postal address detailed in clause 18), or such other address as may have been notified by that party for such purposes.

29.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

30. Governing law

The contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

31. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the contract or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

The Subscription Fees are calculated in relation to each Billing Period by reference to the following User Subscriptions:

1. SWIFT ONBOARD Accounting

A User Subscription being each SWIFT ONBOARD Account that exists for a Limited Company Client during a Billing Period.

2. SWIFT ONBOARD Payroll

A User Subscription being the number of payslips that are processed during a Billing Period and the following shall apply:

2.1 weekly payslips cover 1 pay interval, i.e. 1 week of tax allowances; and

2.2 monthly payslips cover 4 or 5 pay intervals, i.e. 4 or 5 weeks of tax allowances, depending on the Billing Period and which may cover more than one Billing Period.

3. SWIFT ONBOARD Pay and Bill

A User Subscription being each Active Contractor during a Billing Period.

4. SWIFT ONBOARD DRSS

In relation to SWIFT ONBOARD Disaster and Recovery, User Subscriptions being the number of payslips or, unless otherwise agreed by SWIFT ONBOARD, advances that are processed during a Billing Period and the following shall apply:

4.1 weekly payslips or, where applicable, advances cover 1 pay interval, i.e. 1 week of tax allowances; and

4.2 monthly payslips or, where applicable, advances cover 4 or 5 pay intervals, i.e. 4 or 5 weeks of tax allowances, depending on the Billing Period.

Schedule 2

Service Level Agreement

1. Support Requests

1.1 The Customer may make a Support Request for problems or issues with the Services in accordance with the Support Services Policy. SWIFT ONBOARD will prioritise Support Requests based on its assessment of the severity level of the problem or issue reported being made.

1.2 Based on the severity level assigned to a Support Request, SWIFT ONBOARD will use commercially reasonable endeavours to respond to and resolve a Support Requests in accordance with the times set out below:

Severity	Definition	Response Time	Resolution Times
1	A critical error or failure of the Services that prevents payrolls from being run and which: a) material impacts the operations of the Customer’s business; or b) disables major functions of the Services from being performed.	1 hour	1 day
2	a) a critical error or failure of the Services for which a work-around exists; or b) a non-critical error or failure of the Services that materially impacts on the operations of the Customer’s business.	2 hours	5 days
3	An error or failure of the Services that: a) does not significantly affect functionality; b) may disable only certain non-essential functions; or c) does not materially impact the Customer’s business.	5 hours	10 days
4	Any isolated, minor or cosmetic errors.	2 days	As agreed between the parties

1.3 When measuring compliance with these time periods:

(a) response times run from when a Support Request in received by SWIFT ONBOARD;

(b) resolution times do include time during which SWIFT ONBOARD is waiting from input from the Customer or waiting for the Customer to undertake requested actions; and

1.4 Where SWIFT ONBOARD is to provide a resolution for a Support Request, such resolution would include the provision by SWIFT ONBOARD of a reasonable workaround which does not materially impact on the Customer’s operations.

1.5 The response and resolution times set out above shall not apply where the Support Request relates to a problem or issue which is as a result of:

(a) the Customer’s breach of the contract;

(b) any third party software, applications or hardware;

(d) any other cause which is outside of SWIFT ONBOARD’s reasonable control.

2. Service Credits

Where SWIFT ONBOARD has failed to provide a resolution for a Support Request in accordance with the resolution times as set out in paragraph 1.2, the Customer may be entitled to service credits as follows:

Severity	Service Credit
1	In relation to Severity 1 Support Request for which SWIFT ONBOARD fails to provide a resolution in accordance with the required timescale above: for issues or problems which affect Clients other than Limited Company Clients: • An amount equal to 50% of the Subscription Fees applicable to each such Client affected by the problem or issue which is payable is respect of the week of the Billing Period in which the problem or issue occurs for issues or problems which affect Limited Company Clients: • An amount equal to 25% of the Subscription Fees applicable to each such Limited Company Client affected by the problem or issue which is payable is respect of Billing Period in which the problem or issue occurs
2	In relation to Severity 2 Support Request for which SWIFT ONBOARD fails to provide a resolution in accordance with the required timescale above: for issues or problems which affect Clients other than Limited Company Clients: • An amount equal to 25% of the Subscription Fees applicable to each such Client affected by the problem or issue which is payable is respect of the week in the Billing Period which the problem or issue occurs for issues or problems which affect Limited Company Clients: • An amount equal to 12.5% of the Subscription Fees applicable to each Limited Company Client affected by the problem or issue which is payable is respect of the Billing Period in which the problem or issue occurs
3	Not applicable
4	Not applicable

2.1 The total service credits payable in respect of any Billing Period shall not exceed a maximum of 50% of the total Subscription Fees paid in respect of that Billing Period.

2.2 To be entitled to service credits, the Customer must notify SWIFT ONBOARD of any claim for service credits, which will then be assessed by SWIFT ONBOARD. Any claim for service credits must be made within thirty (30) days of the end of the Billing Period to which they relate.

2.3 For the avoidance of doubt, service credits will not be payable where the Support Request relates to a problem or issue which is as a result of those matters set out in paragraph 1.5.

2.4 Any service credits shall be shown as a deduction from the amount due from the Customer in the next invoice then due to be issued under the agreement. The Supplier shall not in any circumstances be obliged to pay any money or make any refund to the Customer.

2.5 The service credit mechanism above is the Customer’s exclusive remedy for any failure of SWIFT ONBOARD to provide the Services in accordance with the SLA as required under clause 5.1 or any failure to make the services available as required under clause 5.2.

Terms & Conditions

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