Eclipse Legal Systems – Monthly Compact Agreement

NOW IT IS AGREED as follows:

THIS AGREEMENT is made as per the Order Form

BETWEEN:

(1)            Eclipse (Hardware) Limited, trading as Eclipse Legal Systems (Company Registration Number 02210162) whose principal place of business is at Kelso House, 11 Burnett Street, Little Germany, Bradford, BD1 5BJ (Provider)

(2)                 As detailed in the Order Form (Customer)

BACKGROUND:

(A) The Provider has developed certain software applications and platforms which it makes available to subscribers on a pay-per-user basis.

(B) The Customer wishes to use the Provider’s service in its business operations.

(C) By signing the Order Form the Provider has agreed to provide and the Customer has agreed to take and pay for the Provider’s service subject to the terms and conditions of this Agreement.

NOW IT IS HEREBY AGREED as follows:

1. INTERPRETATION

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

“Ancillary Services” means training and general consultancy services available from the Provider.

"Authorised Users" means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, which is either a case management user or a cashier, as further described in clause 2.2.4.

"Business Day" means any day which is not a Saturday, Sunday or public holiday in the UK.

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

"Confidential Information" means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5.

"Customer Data" means the data inputted by the Customer, Authorised Users, or the Provider on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

"Documentation" means the document made available to the Customer by the Provider online via www.Eclipselegal.co.uk or such other web address notified by the Provider to the Customer from time to time, which sets out a description of the Services and the user instructions for the Services.

"Effective Date" means the date of this Agreement.

"Initial Subscription Term" means the initial term of this Agreement as set out in Schedule 3 – Subscription Term.

“Limitations” refers to certain system limitations in the software application, as set out in Schedule 4. This is not an exhaustive list but is used to highlight core usability areas.

"Normal Business Hours" means 9.00 am to 5.00 pm local UK time, each Business Day.

“Order Form” means the Order Form which incorporates this Agreement, which is signed by authorised representatives of both parties and under which the Customer agrees to purchase and the Provider agrees to provide the Services;

"Renewal Period" means the period described in clause 14.1.

“Service Levels” means the levels of performance to which the Services are to be provided to the Customer by Provider as set out in Schedule 2.

"Services" means those services, consisting primarily of access to the Software Applications and the provision of the Support Services, to be provided by the Provider to the Customer under this Agreement as more particularly described in the Documentation.

"Software Applications" means the computer software applications more particularly described in Schedule 3

"Subscription Fees" means the subscription fees payable by the Customer to the Provider for the User Subscriptions, as set out in paragraph 1 of Schedule 1 – Subscription Fees.

"Subscription Term" has the meaning given in clause 14.1.

"Support Services Policy" means the Provider’s policy for providing support in relation to the Services as made available at www.eclipselegal.co.uk or such other website address as may be notified to the Customer from time to time.

"User Subscriptions" means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

"Virus" means 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.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

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

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

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.8 A reference to writing or written includes faxes but not e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. USER SUBSCRIPTIONS

2.1 Subject to the Customer purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement and the Order Form, the Provider hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:

2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

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

2.2.3 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;

2.2.4 it shall maintain a written, up to date list of current Authorised Users and provide such list to the Provider within fourteen (14) Business Days of the Provider’s written request at any time or times;

2.2.5 it shall permit the Provider to audit the Services in order to establish the name of each Authorised User. Such audit may be conducted no more than once per quarter, at the Provider’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

2.2.6 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Provider’s other rights, the Customer shall promptly disable such passwords and the Provider shall not issue any new passwords to any such individual; and

2.2.7 if any of the audits referred to in clause 2.2.5 reveal that the Customer has underpaid Subscription Fees to the Provider, the Customer shall pay to the Provider an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 – Subscription Fees within ten (10) Business Days of the date of the relevant audit.

2.3 The Customer shall use reasonable endeavours not to access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that:

2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.3.2 facilitates illegal activity;

2.3.3 depicts sexually explicit images;

2.3.4 promotes unlawful violence;

2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or

2.3.6 causes damage or injury to any person or property;

and the Provider reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.4 The Customer shall not:

2.4.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

2.4.1.1 and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software Applications and/or Documentation (as applicable) in any form or media or by any means; or

2.4.1.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software Applications; or

2.4.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

2.4.3 use the Services and/or Documentation to provide services to third parties; or

2.4.4 subject to clause 19.1, licence, 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

2.4.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or

2.4.6 to "spam" or to send or provide unsolicited advertising or promotional material or, knowingly to receive responses to any spam, unsolicited advertising or promotional material sent or provided by any third party; or

2.4.7 to upload, post or otherwise transmit any content that you do not have a right to transmit under Law or under contractual or fiduciary relationships; or

2.4.8 in any way which is or is likely to be detrimental to the provision of Services (or bring the Provider or hosting provider network into disrepute) to the Customer or any of hosting provider other customers, or to hosting provider business and/or reputation;

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Provider.

2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. ADDITIONAL USER SUBSCRIPTIONS

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 – Subscription Fees, but no more than 10 (ten). The Provider shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Provider in writing. The Provider shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or disapproval of the request (such approval not to be unreasonably withheld).

3.3 If the Provider approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within thirty (30) days of the date of the Provider’s invoice, pay to the Provider the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 – Subscription Fees and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4. SERVICES

4.1 The Provider shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.

4.2 Subject to clauses 13.5 and 15, the Provider shall use commercially reasonable endeavours to make the Services available in accordance with the Service Levels, except for:

4.3 The Provider will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Provider’s standard customer support services during Normal Business Hours in accordance with the Provider’s Support Services Policy in effect at the time that the Services are provided. The Provider 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 the Provider’s then current rates.

4.4 On request the Provider will supply Ancillary Services to the Customer in consideration for the payment of its then current daily charging rates for such services.

4.5 Services provided include hosting services via a third party, and require a separate agreement with the third party which is provided for at the time of order.

5. CUSTOMER DATA

5.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2 The Provider 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 the Provider to perform services related to Customer Data maintenance and back-up).

5.3 The Provider shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.eclipselegal.co.uk or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Provider in its sole discretion.

5.4 If the Provider processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Provider shall be a data processor and in any such case:

5.4.1 the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Provider so that the Provider may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf and the Customer has obtained all necessary consents from the data subjects to do so;

5.4.2 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

5.4.3 the Provider shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

5.4.4 each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

5.5 the Customer shall indemnify the Provider and keep the Provider indemnified against, any loss, damages and, costs, expenses (including without limitation legal costs and expenses), claims or proceedings whatsoever or howsoever arising from the Customer’s unlawful or unauthorised processing, destruction and/or damage to Personal Data in connection with this Agreement.

6. THIRD PARTY SUPPLIERS

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Provider makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Provider. The Provider recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Provider does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7. PROVIDER’S OBLIGATIONS

7.1 The Provider undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Provider’s instructions, or modification or alteration of the Services by any party other than the Provider or the Provider’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, Provider 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 the undertaking set out in clause 7.1. Notwithstanding the foregoing, the Provider:

7.2.1 does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; nor that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

7.2.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and 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.

7.3 This Agreement shall not prevent the Provider from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

7.4 The Provider warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7.5 For the purpose only of ensuring that this Agreement complies with the requirements of the Solicitors Regulation Authority Handbook,the Provider shall comply with the reasonable requests of the SRA or its agent to obtain information and inspect records (including electronic records) in relation to the working relationship of the Provider with the Customer and to enter the Provider’s premises for the purpose of obtaining such information and carrying out such inspection

8. CUSTOMER’S OBLIGATIONS

The Customer shall:

8.1 provide the Provider with:

8.1.1 all necessary co-operation in relation to this Agreement; and

8.1.2 all necessary access to such information as may be required by the Provider; in order to render the Services, including but not limited to Customer Data, licences relating to the Software Applications, security access information and configuration services;

8.2 comply with all applicable laws and regulations with respect to its activities under this Agreement including ensuring that they are not used for any unauthorised access or denial of service attacks which is or would be an offence under Section 1, 2, or 3 of the Computer Misuse Act 1990;

8.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Provider may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.4 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;

8.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Provider, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

8.6 ensure that its network and systems comply with the relevant specifications provided by the Provider from time to time;

8.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the 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 including any bandwidth provider of the Customer’s choice or caused by the internet;

8.8 not and ensure its Authorised Users do not use or permit the use of the Services in such a way as to cause interruption, interference, impairment or degradation of any communications network that is used to provide the Services;

8.9 comply with and ensures that its Authorised Users comply with any supplementary acceptable use policies applicable to the Services received from the hosting provider;

8.10 where required by the hosting provider due to technical or other reasons, renumber any IP addresses issued to it as part of the Services; and

8.11 comply with the hosting provider’s reasonable requests which are necessary for reasons of health, environment/sustainability, security, safety or the quality and/or performance of any Service provided to the Customer or any other customer.

9. CHARGES AND PAYMENT

9.1 The Customer shall pay the Subscription Fees to the Provider for the User Subscriptions by direct debit in accordance with this clause 9 and Schedule 1 – Subscription Fees.

9.2 The Customer shall on the Effective Date provide to the Provider valid, up-to-date purchase order information acceptable to the Provider and any other relevant valid, up-to-date and complete contact and billing details for payment:

9.2.1 on or before the Effective Date in respect of the Subscription Fees payable in respect for the Initial Subscription Term; and

9.2.1.2 subject to clause 14.1, at least thirty (30) days prior to each anniversary of the Effective Date in respect of the Subscription Fees payable in respect of the next Renewal Period; and the Customer shall pay each invoice within 30 days after the date of such invoice.

9.3 If the Provider has not received payment within thirty (30) days after the due date, and without prejudice to any other rights and remedies of the Provider:

9.3.1 the Provider may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Provider shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.3.2 interest shall accrue on such due amounts at an annual rate equal to 8% over the then current base lending rate of Yorkshire Bank Plc at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment. The Provider reserves the right to claim interest and costs under the Late Payment of Commercial Debts (Interest) Act 1998.

9.4 All amounts and fees stated or referred to in this Agreement:

9.4.1 shall be payable in pounds sterling;

9.4.2 are, subject to clause 13.4.2, non-cancellable and non-refundable;

9.4.3 are exclusive of value added tax, which shall be added to the Provider’s invoice(s) at the appropriate rate; and

9.4.4 are subject to annual indexation which shall be measured by changes in the Consumer Price Index, as published by the Office for National Statistics UK

9.5 The Provider shall be entitled to increase the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 pursuant at the start of each Renewal Period upon ninety (90) days’ prior notice to the Customer and Schedule 1 – Subscription Fees shall be deemed to have been amended accordingly.

9.6 If at any stage, the Customer should fail to pay any sum due pursuant hereto within 90 days of its due date, the Provider shall be entitled to serve written notice on the Customer demanding payment in full within seven (7) Business Days of all Subscription Fees and other sums payable to the Provider for the entire Initial Subscription Term or entire Renewal Period then in course including, without prejudice to the generality of the foregoing, full payment of all sums payable at any stage in respect of such periods and the Customer shall be obliged to make such payment within such seven (7) Business Days.

9.7 If at any stage it becomes necessary for the Provider to make a site visit to the premises of the Customer, the Provider shall be entitled to charge for the time it spends in relation to such visit at its then current charging rates as well as the expenses and disbursements it incurs in accordance with its then current schedule.

10. PROPRIETARY RIGHTS

10.1 The Customer acknowledges and agrees that the Provider and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

10.2 Provider confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement

11. CONFIDENTIALITY

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

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

11.1.2 was in the other party’s lawful possession before the disclosure;

11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

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

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

11.2 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 this Agreement.

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

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

11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Provider’s Confidential Information.

11.6 The Provider acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7 This clause 11 shall survive termination of this Agreement, however arising.

12. INDEMNITY

12.1 The Customer shall defend, indemnify and hold harmless the Provider 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 the Customer’s use of the Services or Documentation provided that:

12.1.1 the Customer is given prompt notice of any such claim;

12.1.2 the Provider provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

12.1.3 the Customer is given sole authority to defend or settle the claim.

12.2 The Provider shall, subject to clause 12.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringe 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:

12.2.1 the Provider is given prompt notice of any such claim;

12.2.2 the Customer provides reasonable co-operation to the Provider in the defence and settlement of such claim, at the Provider’s expense; and

12.2.3 the Provider is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of any claim, the Provider 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 this Agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

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

12.4.1 a modification of the Services by anyone other than the Provider; or

12.4.2 the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Provider; or

12.4.3 the Customer’s use of the Services after notice of the alleged or actual infringement from the Provider or any appropriate authority.

12.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Provider’s (including the Provider’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. LIMITATION OF LIABILITY

13.1 Subject to the provisions of clause 12, this clause 13 sets out the entire financial liability of the Provider (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

13.1.1 any breach of this Agreement;

13.1.2 any use made by the Customer of the Services and Documentation or any part of them; and

13.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2 Except as expressly and specifically provided in this Agreement:

13.2.1 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. The Provider shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Provider by the Customer in connection with the Services, or any actions taken by the Provider at the Customer’s direction;

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

13.2.3 the Services are provided to the Customer on an "as is" basis.

13.3 Nothing in this Agreement excludes the liability of the Provider:

13.3.1 for death or personal injury caused by the Provider’s negligence; or

13.3.2 for fraud or fraudulent misrepresentation.

13.4 Subject to clause 13.2 and clause 13.3 the Provider’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 this Agreement shall be limited to the sum total of the annual contract value paid in the previous twelve (12) months which gave rise to the claim provided that the Provider shall not be liable for any special, indirect or consequential loss including but not limited to loss of profits, loss of business, loss of data, loss of anticipated savings, depletion of goodwill or any costs or expenses related to such consequential losses

13.5. The provider shall not be liable for any actions or omissions of the Customer (including, without limitation, breach of the Customer’s obligations set out in this Agreement) or of any third parties;

13.5.1 problems with the Customer’s equipment and/or third party equipment; or

13.5.2 interruptions to the Services requested by the Customer;

13.5.3 factors outside of Providers reasonable control.

14. TERM AND TERMINATION

14.1 This Agreement shall commence on the Effective Date and unless otherwise terminated as provided in this clause 14 shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each called a Renewal Period), unless:

14.1.1 either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

14.1.2 otherwise terminated in accordance with the provisions of this Agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:

14.2.1 the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

14.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or

14.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

14.2.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or

14.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

14.2.6 the other party ceases, or threatens to cease, to trade; or

14.2.7 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.

14.3 On termination of this Agreement for any reason:

14.3.1 all licences granted under this Agreement shall immediately terminate;

14.3.2 the Customer shall pay to the Provider any sums due to the Provider under this agreement and shall not be entitled to reimbursement of any such sums paid or any proportion thereof

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

14.3.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced;

15. FORCE MAJEURE

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

16. WAIVER

16.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

16.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

17. SEVERANCE

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

17.2 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.

18. ENTIRE AGREEMENT

18.1 This Agreement, and any documents referred to in it and any technical terms and conditions issued by the Provider, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

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

19. ASSIGNMENT

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

19.2 The Provider may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

20. NO PARTNERSHIP OR AGENCY

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

21. THIRD PARTY RIGHTS

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

22. NOTICES

22.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, email, fax, or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.

22.2 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. A notice sent by email or fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender), save for transmission error. For the avoidance of doubt, transmission via email or fax should be confirmed by both parties regarding successful receipt.

23. GOVERNING LAW AND JURISDICTION

23.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

23.2 Subject to clause 24, the parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

24. DISPUTE RESOLUTION

24.1 The parties shall act in good faith to resolve any dispute arising between them under this Agreement (Dispute).

24.2 If a Dispute is not resolved by the parties within 20 Business Days from receipt by one party from the other of a written notice requesting resolution providing full details of the Dispute, then either party may refer the Dispute to an independent person for resolution as provided in this clause 24.

24.3 If the appointment of an independent person cannot be agreed by the parties within a reasonable period not exceeding 20 Business Days, then either party may within a further 20 Business Day period refer the dispute to an independent expert appointed by the President for the time being of the British Computer Society (or its successor) to act as an expert in determining the dispute.

24.4 The costs of this procedure shall be borne by the parties in the proportions decided by the expert.

24.5 If either party fails to comply with this clause 24 or the appointment of the expert is not achieved within the agreed period, then the Dispute may be referred to the courts for resolution.

25. NON-SOLICITATION

During the period of this Agreement, and for a six month period following its termination, neither party shall directly or indirectly solicit, recruit or employ the services of any employee of the other party without the other party’s written consent. If either party is in breach of this condition, the party in breach shall immediately pay to the other a sum equal to the first six months’ gross remuneration of the person so engaged. Such sum shall be by way of liquidated damages.

This Agreement has been entered into on the date stated in the Order Form.

SCHEDULE 1 – SUBSCRIPTION FEES

1.       Subscription Fees £95 per Authorised User per month.

2.       Additional User Subscription Fees: Accounts cashiers at £95 per user per month; A2A application provision at £95 per month; any other elements as offered by the Provider at time-to-time which do not fall under the scope of the initial signed order.

SCHEDULE 2 – SERVICE LEVELS

1.       Quality of Service Management

The Provider and the Customer agree to reconcile their performance statistics on a periodic basis. The Provider and the Customer will use their collective judgement to set the frequency of these reconciliations. At any point either the Provider or the Customer can convene a special meeting to reconcile performance statistics.

2.       Primary Hours of Operation

The Provider and Customer recognise that there are periods when availability of the Services is critical to the Customer’s operations therefore a manned support desk is available during the core working day – 9am to 5:00pm, Monday to Friday excluding UK public holidays. Down time for maintenance and upgrades will be scheduled in advance with notification given to the Customer. Support requests will be notified by the Customer to the Provider via dedicated website form, with a maximum 24-hour response time.

SCHEDULE 3 – SOFTWARE APPLICATIONS

Term: 36 months

Product: Compact

SCHEDULE 4 – LIMITATIONS

Compact is limited to ten (10) concurrent Authorised Users. For scale above this, the Customer will need to migrate to Proclaim and revert to that system’s standardised pricing model. Compact does not allow integration with the Provider’s Customer communication tools such as TouchPoint+, FileView, SecureDocs and so on. Compact does not allow access to Proclaim’s administrative tools to manage screens, fields, workflow, and preferences. A functionality comparison is available on request from the Provider. The Customer inception tool contained within Compact is restricted to a 10GB storage limit, and may require additional chargeable licensing after this point.

SCHEDULE 5 – HOSTING

Compact is a securely hosted software application, and the Provider utilises a third party UK based hosting partner to facilitate Service.