<p>SOFTWARE LICENCE AND MAINTENANCE AGREEMENT<br />TERMS AND CONDITIONS (&ldquo;Terms&rdquo;)</p>
<p>THIS IS A LEGAL AGREEMENT BETWEEN THE PERSON OR ENTITY THAT HAS PURCHASED A SOFTWARE LICENCE ("YOU" OR "LICENSEE") AND SYSCOM PLC ("US") ENTERED INTO EITHER BY YOU CLICKING "AGREE AND CONTINUE" AS PART OF THE INSTALLATION PROCESS OR THE DATE OF INSTALLATION OR FIRST USE IF EARLIER. BY CLICKING "AGREE AND CONTINUE", INSTALLING OR USING THE SOFTWARE YOU SIGNIFY YOUR AGREEMENT TO BE BOUND BY THE FOLLOWING TERMS SET OUT BELOW IN RESPECT OF THE LICENSED SOFTWARE. IF YOU DO NOT ACCEPT THE LICENCE TERMS THEN YOU MUST NOT CONTINUE WITH THE INSTALLATION PROCESS OR USE THE SOFTWARE.</p>
<p>YOU HEREBY AGREE TO LICENCE SOFTWARE PRODUCTS AND/OR SERVICES IN ACCORDANCE WITH THESE TERMS INCLUDING THE ADDENDUM HERETO WHICH SHALL FORM THE CONTRACT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS CONTRACT AND BIND THE LICENSEE AND THAT YOU ARE ENTERING INTO THIS LICENCE ON ITS BEHALF. SHOULD THIS NOT BE THE CASE YOU MUST NOT CONTINUE WITH THE INSTALLATION PROCESS OR USE THE SOFTWARE.</p>
<p>Operative provisions:<br />1 Definitions<br />In this agreement unless the context otherwise requires:<br />&ldquo;Documentation&rdquo; means the online instruction manuals user guides and other information and written instructions relating to the Licensed Programs made available from time to time during this Agreement by us at our discretion <br />&ldquo;Equipment&rdquo; means the machine identified by type and serial number in the Order, or where none is specified, then the machine upon which the Licensed Programs are installed. In the case of a cloud installation it means the provider&rsquo;s cloud server(s) and their reference for your use of their cloud facilities.<br />&ldquo;Initial Term&rdquo; means in respect of any Licensed Program, the period of 12 months or more as detailed on the Order commencing from the date upon which such Licensed Program is installed or access to it being available to you <br />&ldquo;Licence Fee&rdquo; means the charge for the Licence Programs set out in the Order<br />&ldquo;Licensed Program&rdquo; means the software programs in object code form or otherwise identifiable by title or reference number including the schema and any New Release of the same made or issued pursuant to clause 9 below as detailed in the Schedule<br />&ldquo;Materials&rdquo; means the Licensed Programs and the Documentation or any part thereof<br />&ldquo;New Release&rdquo; means any improved modified or corrected version of any of the Materials from time to time issued by us pursuant to clause 9 below<br />&ldquo;Normal Working Hours&rdquo; means 9am to 5pm UK time Monday to Friday (excluding UK public holidays)<br />&ldquo;Order&rdquo; means an Order to Supply/ Software Products Schedule signed by us and by you, whether relating to the provision of the Licensed Programs or Maintenance or online agreement in the case of Subscription Licences<br />&ldquo;Renewal Period&rdquo; means any period of 12 months after the expiry of the Initial Term during which the Licence subsists <br />&ldquo;Site&rdquo; means the address stated in the initial Order for the delivery of or providing access to Materials and notices<br />&ldquo;Subscription Licence&rdquo; means the licence for Licenced Programs provided on a subscription basis via the internet as set out in the Order for the Initial Term<br />&ldquo;Maintenance Charge&rdquo; means the annual charge for the provision of Maintenance set out in the Order or otherwise for the Initial Term as subsequently varied for any Renewal Period from time to time<br />&ldquo;Maintenance&rdquo; means the provision of such categories of technical Maintenance in accordance with clause 9 below as shall be specified in respect of each of the Licensed Programs<br />&ldquo;Subsidiary&rdquo; shall mean an entity controlled by you as a result of you owning more than 50% of the outstanding equity interests of such entity<br />&ldquo;Schedule&rdquo; means the schedule included in the addendum to these Terms<br />&ldquo;Use&rdquo; means the loading, storage, operation or displaying of the Licensed Programs<br />&ldquo;We&rdquo;/ &ldquo;Us&rdquo; means Syscom PLC whose registered office is Hampshire House, Kingswinford, West Midlands DY6 8AW UK<br />&ldquo;You&rdquo; Or &ldquo;Licencee&rdquo; means the person, firm, company or organisation named in the Order to whom we are to grant a Licence in accordance with this Agreement</p>
<p>2 Grant of Licence<br />2.1 In consideration of the payment by you of the Licence Fee in accordance with clause 3 below and the Maintenance Charge, we grant to you a non exclusive, non-assignable and non-transferable licence for the duration of the Initial Term to Use the Licensed Programs (and where appropriate the Documentation) to access only one production Database at any one time upon the Equipment and to possess or access and refer to the Documentation.<br />2.2 Subject to payment of the applicable Maintenance Charge and Annual Licence Fee for each Renewal Period and to the provisions for termination contained in this Agreement, the Licence shall be automatically renewed at the end of the Initial Term for a further period of 12 months, which shall constitute the first Renewal Period and thereafter for successive Renewal Periods of 12 months each.<br />2.3 Your Licence to Use the Materials is valid only for you, for your business as constituted at the date of the Order or request, this extends to subsidiaries over which you have control. It does not extend to any parent or other associated companies. We may upon request grant a further licence for any such purpose, subject to payment of any applicable additional Licence Fees required.<br /><br />3 Licence Fee<br />3.1 The Licence Fee and/or the annual Licence Fee (Annual Licence Fee) shall be the sum specified in the Order and shall (unless stated to the contrary in the Order) be paid:-<br />3.1 30% of the first years fees upon signature of the Order by you; (b) and as to the balance 70% in advance upon Licenced Programs being made available for the first year and for each following year 100% prior to each anniversary of that date.<br />3.2 The Licence is granted for the number and type of users specified in the Order. In the event that the Order does not show the number or type of users, or in the case where there is no Order, the number of specified users for which the Licence is granted shall be deemed to be one and the type shall be named user. An additional Licence Fee shall be payable for each additional Dynamics 365 Finance and Operations user licence.<br />3.3 On the acceptance of the Order by us, you are bound to purchase all the component modules of the Licensed Programs specified in the Order.<br /><br />4 Delivery and Installation<br />4.1 We shall use reasonable endeavours to deliver one copy of the Materials to the Site or provide access thereto within a reasonable time after signature by us and by you of the Order. Time of delivery of or providing access to the Materials or Services is not of the essence of this Agreement. You agree to accept (and in default shall be deemed to accept) delivery of or providing access to the Materials when tendered by us. <br />4.2 You are responsible for ensuring that the Equipment is fully operational prior to the scheduled date for installation of the Licensed Programs (unless we have contracted with you to supply the Equipment) and that we are given such cooperation and assistance as we may reasonably require to enable us to install or provide access to the Licensed Programs. The cost of delivery and installation or providing access will (unless and to the extent expressly provided for in the Services Charge stated in the Order) form a Standard Charge in accordance with our prevailing rates at the relevant time. We may install or provide access to the Licensed Programs either by attendance on Site or by use of remote means.<br />4.3 Acceptance of the Licensed Programs will be deemed to take place on you clicking &ldquo;Agree and continue&rdquo;, delivery of the Materials to the Site or commencing to install the same.<br />4.4 You are obliged to pay for each of the Licensed Programs which is delivered, irrespective of the delivery of any other software.<br /><br />5 Permitted Use<br />5.1 You may use the Licensed Programs only on the Equipment at the Site or via permitted remote access. The Software is protected by a signature key. To use the Software the license must be activated by entering a properly issued License Files/Code (&ldquo;Key&rdquo;) as prompted by the Software. Within 4 weeks of the end of the Initial Term and successive Renewal Periods or on the change of Equipment a new signature key is required. In the case of a Subscription Licence a new signature key is required prior to the end of the current period. Failing to correctly follow the activation procedures is a material breach of this License Agreement. The use of the Licensed Programs on different equipment or at a different location requires our prior written consent (which will not be unreasonably withheld). Upon such consent being given the different equipment or location will become the Equipment or Site for the purposes of the Licence. A new signature key will be issued automatically unless you are in breach of the terms of this agreement in which case the signature key will be issued when the breach has been rectified to our satisfaction. The non-issue of a signature key does not affect your licence granted under this agreement or your duties as to payment. We will be without liability to you in respect of such an event.<br />5.2 If the Equipment is for any reason inoperable you shall be entitled subject to payment of our Standard Charge to use the Licensed Programs upon such alternative machine under the control of the Licensee as we shall approve (such approval not to be unreasonably withheld or delayed) until such time as the Equipment once more becomes operable which fact shall be promptly notified to us.<br />5.3 You may use the Materials for processing your own data for your internal business purposes. You shall not use or attempt to use the Materials or any output of the Licensed Programs or permit any third party to do so:-<br />5.3.1 to provide a data processing service or any other service to any third party by way of trade or otherwise; or<br />5.3.2 as part of a network or via the Internet (save to the extent such use is for a purpose which, having regard to the nature of the software supplied, we have agreed in writing to permit); or<br />5.3.3 contrary to any other restriction stated in this Agreement.<br />If you are in breach of this clause 5.1 or 5.2 this shall be deemed a breach of this Agreement, and such breach shall entitle us to terminate this License Agreement for cause in addition to all other remedies available to it in law or equity.</p>
<p>6 Copying of the Materials<br />6.1 You are entitled to make one back up or archival copy of each of the Licensed Programs and one test/development copy to such an extent as is reasonably necessary in the course of normal commercial practice. Any such copies shall in all respects be subject to the terms and conditions of this Agreement and shall be deemed to form part of the Licensed Programs.<br />6.2 You are not entitled to copy in whole or in part the Documentation.<br /><br />7 Property and Confidentiality in the Materials<br />7.1 The Materials contain our confidential information and those of our own third party suppliers and all copyright trademarks and other intellectual property rights in the Materials are our exclusive property or the property of our own third party suppliers (as the case may be).<br />7.1.1 You shall not:<br />7.1.2 save as provided in clause 6 above make back up copies of the Materials; reverse compile, copy or adapt the whole or any part of the Materials for the purposes of correcting errors in the Materials;<br />7.1.3 save solely for the purposes expressly permitted by and in accordance with s. 296A(1) CDPA or s. 50B(2) CDPA (in which event copying or adaptation must take place at our premises only) copy adapt or reverse compile the whole or any part of the Materials however in all instances you agree to assign all proprietary rights in all such adjustments, translations and/or modifications carried out by you to us;<br />7.1.4 assign transfer sell lease rent charge or otherwise deal in or encumber the Materials or use the Materials on behalf of any third party or make available the same to any third party; or<br />7.1.5 remove or alter any copyright or other proprietary notice on any of the Materials.<br />7.1.6 permit any third party access to the Licensed Programs for the purpose of providing Maintenance or for any other purpose, save as permitted by this Agreement.<br />7.2 You shall:<br />7.2.5 keep confidential the Materials and limit access to the same to those of its employees agents and sub contractors who either have a need to know or who are engaged in the Use of the Licensed Programs (including where appropriate the Documentation);<br />7.2.6 reproduce on any copy (whether in machine readable or human readable form) of the Materials our copyright and trade mark notices;<br />7.2.7 maintain an up to date written record of the number of copies of the Materials and their location and upon request forthwith produce such record to us; and<br />7.2.8 notify us immediately if you become aware of any unauthorised use of the whole or any part of the Materials by any third party; and<br />7.2.9 without prejudice to the foregoing take all such other steps as shall from time to time be necessary to protect our confidential information and intellectual property rights and those of our suppliers in the Materials.<br />7.2.10 permit us to have sole control of the prosecution or defence of any claim relating to any alleged infringements of our intellectual property rights or the rights of any third party relating to the Use of the Licensed Programs, including conduct of any related settlement negotiations and you will give us such assistance as we may reasonably require in connection with the same.<br />7.3 You shall inform all relevant employees agents and sub contractors that the Materials constitute our confidential information and that all intellectual property rights therein are our property or the property of our suppliers and you shall take all such steps as shall be necessary to ensure compliance by your employees agents and sub contractors with the provisions of this clause 7.<br />7.4 You agree to indemnify us from and against all and any claims costs losses expenses or damages sustained or incurred by us in relation to any alleged infringement of the intellectual property rights of any third party in connection with any material or data supplied by you.<br />7.5 You agree to indemnify us, our agents, suppliers, and the like harmless against any claim(s) or damages (including legal costs, damages, judgments, and expenses) resulting from misuse of the Software, violation of law or any breach of this License Agreement either by you or third parties accessing the Software.<br /><br />8 Services<br />8.1 Should you require our assistance by way of Services these will be made available subject to a services order.<br /><br />9 Maintenance - Our Obligations<br />9.1 With effect from the commencement of the Initial Term (and subject to payment of the relevant Licence Fee and Maintenance Charge) and for the duration of this Agreement we shall provide Maintenance in respect of each of the Licensed Programs in accordance with the following provisions of this Agreement. Once the Order is accepted by us or a requested change to a Licensed Program is delivered, you are bound to pay for such Maintenance in accordance with this Agreement and any Maintenance in respect of each of the Licensed Programs specified in the Order which cannot be cancelled for the Initial Term and thereafter in accordance with clause 2.2 and 18.<br />9.2 Where additional Licensed Programs or additional users are provided by us to you, then the Initial Term or Renewal Date for existing Licensed Programs shall change to the date upon which the additional Licensed Program or additional users are is delivered in accordance with the provisions of clause 4; <br />9.3. Subject to payment, Maintenance will be made available by us during Normal Working Hours covering the following:-<br />9.3.1 information on forthcoming New Releases of the Licensed Programs;<br />9.3.2 upon your request the provision of our reasonable commercial endeavours in the (i) diagnosis and (ii) rectification of faults in the Licensed Programs (remotely or by attendance on Site as determined by us) by the issue of fixes in respect of the Licensed Programs<br />9.3.3 the creation and despatch to you from time to time at our sole discretion of fixes in respect of the Licensed Programs;<br />9.3.4 the creation and despatch to you from time to time at our sole discretion of a New Release of the Licensed Programs or Documentation, it being acknowledged by you that in certain circumstances the issue of a New Release may be the only remedy available, in which event no other Maintenance may be offered.<br />9.3.5 When reporting a fault in the Licensed Programs, you agree to provide in writing via our support web site, sufficient information to enable us to replicate the fault in question. If you are unable to do this, we may not be able to remedy the fault. <br />9.3.6 These terms of the license for the Licensed Programs may be revised in respect of a New Release<br />9.4 Support services can be made available by us during Normal Working Hours covering subject to a services contract for the following:-<br />9.4.1 advice by telephone, e-mail or other form of communication on the Use of the Licensed Programs;<br />9.5. Support and/or Maintenance shall not include the diagnosis and rectification of any fault resulting from:<br />9.5.1 the incorrect use operation or neglect of either the Materials or the Equipment;<br />9.5.2 the modification by you of the Licensed Programs or their merger (in whole or in part) with any other software;<br />9.5.3 the use of the Licensed Programs on equipment other than the Equipment;<br />9.5.4 the failure by you to implement recommendations in respect of or solutions to faults previously notified to us;<br />9.5.5 any repair adjustment alteration or modification of the Licensed Programs by any person other than us without our prior written consent;<br />9.5.6 the rectification of any fault in a Licensed Program which has been supplied to us by a third party supplier, in any such case our obligation shall be limited to using our reasonable endeavours to co-ordinate the provision of Support and/or Maintenance by the relevant third party supplier;<br />9.5.7 any breach by you of any of your obligations under any maintenance agreement where appropriate in respect of the Equipment;<br />9.5.8 any failure by you to install and Use upon the Equipment in substitution for the previous release any New Release of the Licensed Programs within 7 days of receipt of the same; or<br />9.5.9 the use of the Licensed Programs for a purpose for which they were not designed;<br />9.5.10 your failure to ensure that your staff have training in accordance with the requirements set out in sub-clause 9.6.3.</p>
<p>Your Obligations<br />9.6 For the duration of this Agreement, you will:-<br />9.6.1 only use the release recommended by us from time to time of any Licensed Program;<br />9.6.2 ensure that the Licensed Program and the Equipment are used in a proper manner by competent trained employees only or by persons under their supervision;<br />9.6.3 ensure that at least two members of your staff who have undergone our standard training are available to deal with operating problems at all times during your working hours;<br />9.6.4 not request or permit anyone other than us to provide any Maintenance or Support services in respect of the Licensed Programs;<br />9.6.5 cooperate with our personnel and those of our sub-contractors in the diagnosis, investigation and correction of any fault in any Licensed Program;<br />9.6.6 make available to us free of charge all information, facilities and services reasonably required by us to a specification approved by us from time to time so to provide a suitable test and/or sandbox environment at your expense to enable us to provide Maintenance:<br />9.6.7 provide at your expense as are reasonably required by us for remote testing, installation, delivery and diagnostic services and bear the cost of all charges, and reimburse our costs where we incur them;<br />9.6.8 provide access to your staff, the Licensed Programs, the Equipment and the Site at such times as we may require for the purposes of undertaking Maintenance;<br />9.6.9 notify us promptly in accordance with the fault determination procedures operated by us from time to time via our Maintenance website;<br />9.6.10 ensure complete and accurate back ups are made of all data and that you are capable of restoring any database to a previously backed up version;<br />9.6.11 permit us access to the Site for the purpose of verifying that you are fulfilling your obligation under this Agreement.<br />9.6.12 When requested certify in writing your compliance with the terms of this licence agreement.<br />9.7 We shall upon request by you provide Maintenance notwithstanding that the issue results from any of the circumstances described in clause 9.5 and 9.6 above. We shall in such circumstances be entitled to levy Standard Charges in the manner set out in clause 10 below.<br />9.8 Without prejudice to clause 9.7 above the Company shall be entitled to levy Standard Charges in the manner set out in clause 10 below if support or maintenance is provided in circumstances where any reasonably skilled and competent data processing operator would have judged your request to have been unnecessary or if no reasonable attempt has been made by you to investigate and/or overcome the fault giving rise to the request for Maintenance in accordance with the applicable fault determination procedures. <br />9.9 We shall cease to be liable to provide Maintenance in respect of any Licensed Program where the manufacturer or supplier of the same ceases to provide Maintenance facilities to us in respect of that product (whether by virtue of its obsolescence or otherwise)<br /><br />10 Services Charge, Maintenance Charge, Annual Licence Fee and Standard Charges<br />10.1 The Maintenance Charge for each Licensed Program for the Initial Term shall be that sum specified in the Order or calculated in accordance with clause 10.5.11. The Maintenance Charge on the Order shall be paid:<br />10.1.1 On premise or private cloud: (a) as to 30% on signature of the Order by you; (b) as to the balance upon delivery of the Licensed Programs in question<br />10.1.2 Subscription Licence: (a) as to 30% of the first years Maintenance Charge upon signature of the Order by you; (b) and as to the balance for each year&rsquo;s Maintenance Charge, 70% in advance upon Licenced Programs being made available for the first year and for each following year 100% prior to each anniversary of that date.<br />10.2 The Maintenance Charge and Annual Licence Fee for any Renewal Period will be in accordance with our applicable charges or those of any applicable third party for the whole of the applicable Renewal Period. If Maintenance is only required for a proportion of the next Renewal Period, such Maintenance may be provided by us on a short term contract basis at our applicable rates subject to Maintenance being purchased for a minimum period of 3 months.<br />10.3 In addition to the Support Charge and/or the Maintenance Charge for the Initial Term and any Renewal Period, you are liable to pay Standard Charges for the following:-<br />10.3.1 Maintenance provided at your request in circumstances not falling within the provisions of clause 9.7 (including the cost of our auditing or reviewing work undertaken by you or any third party);<br />10.3.2 Maintenance provided in circumstances where any reasonably skilled and competent data processing operator would have judged your request to have been unnecessary;<br />10.3.3 any New Release in respect of which we are obliged to pay a charge to any third party;<br />10.3.4 delivery and/or installation of any New Release;<br />10.3.5 rectification of any fault requiring the assistance of any third party for which we are charged;<br />10.3.6 where the rectification of any fault requires the attendance of our personnel at the Site;<br />10.3.7 any adaptation to any Licensed Program necessitated by the issue of a New Release, where the degree of modification required to the original Licensed Program (including, without limitation, commissioned or bespoke Licensed Programs) means that any standard New Release itself requires further modification;<br />10.3.8 Services provided not subject to an Order;<br />10.3.9 Maintenance provided out of Normal Working Hours;<br />10.3.10 any out of pocket expenses incurred by us in the provision of Maintenance (such as, without limitation, mileage, subsistence, rail and air fares, media and data transfer costs including band width costs);<br />10.3.11 for the provision of Maintenance arising out of malfunctions, faults, defects or problems with the Licensed Programs arising wholly or partly as a result of changes to, or defects in, the Equipment or any other aspect of the operational environment in which the Licensed Programs are used, or from the incompatibility of any version of the Licensed Program with any software used in conjunction with any Licensed Program.<br />10.4 The Maintenance Charge and Annual Licence Fee for the Initial Term is payable on the date of installation of the Licensed Program to which it relates.<br />10.5 The Maintenance Charge and Annual Licence Fee for any Renewal Period is payable in advance within 14 days of the date of our invoice therefore.<br />10.6 Any charge for out of pocket expenses is payable within 14 days of the date of our invoice thereof.</p>
<p>11. Late Payment<br />11.1 In the event of late payment of any sum which is due to us under this Agreement, we reserve the right (without prejudice to any other remedy we may have):-<br />11.1.1 to charge you interest in respect of the late payment (as well after as before judgment) at the rate of 4 per cent per annum above the base rate from time to time of Barclays Bank plc from the due date therefore until payment. You also agree to pay the reasonable cost of any legal action including management time to collect overdue monies;<br />11.1.2 to suspend the provision of Services and/or Maintenance without liability to you;<br />11.1.3 to terminate the Licence and/or repossess the Materials;<br />11.1.4 to suspend credit terms and/or special payment arrangements which are only available if you adhere to agreed payment terms;<br />11.1.5 to apply a Standard Charge for the resumption of Maintenance following payment.</p>
<p>12. Warranty<br />12.1 Subject to the exceptions set out in clause 12.2 and 12.4 below and the limitations upon our liability in clause 13 below we warrant that:<br />12.1.1 we have the right to licence the Use of the Materials;<br />12.1.2 each Licensed Program will for a period of 90 days from the date of delivery of the same substantially conform to the specification contained within the Documentation applicable to that Licensed Program;<br />12.1.3 we will perform the Services with reasonable care and skill all being subject to a Service Agreement<br />12.2 The warranties contained in sub-clauses 12.1.2 shall not apply to any Licensed Program which has been supplied to us by any third party for licensing to you. As regards any such Licensed Program, we will assign to you the benefit of any applicable warranty provided by our third party supplier, to the extent permitted by the supplier in question.<br />12.3 You shall give notice to us as soon as you are reasonably able upon becoming aware of a breach of warranty.<br />12.4 Subject to clauses 12.2 and 12.3 we shall remedy any breach of the warranties set out in clause 12.1 and above by the provision of Maintenance free of any charge other than the Maintenance Charge and Annual Licence Fee.<br />12.5 We shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the circumstances described in clause 9.5 above or if any Services Charge, Maintenance Charge, Annual Licence Fee or Standard Charge payable under this or other Agreement has not been paid by the due date.<br />a. Without prejudice to the foregoing we do not warrant that the Use of the Licensed Programs will meet your data processing requirements or that the operation of the Licensed Programs (including where in machine readable form the Documentation) will be uninterrupted or error free.<br />b. Subject to the foregoing all conditions warranties terms and undertakings express or implied statutory or otherwise in respect of the Materials and the provision of the Services and Maintenance are hereby excluded.<br />c. You accept that the Materials were not designed and produced to your individual requirements and that you were responsible for their selection. You assumes all risk in relation to the use of the Software. The licence for the Licensed Programs is granted on an "as-is". Computer programs are inherently complex, and the software may not be free of errors. The software is provided with all faults. Albeit Maintenance is available the entire risk as to satisfactory quality, performance, accuracy and effort is with You. <br /><br />13. Limitation of liability<br />13.1 The following provisions set out our entire liability (including any liability for the acts and omissions of our employees agents and sub contractors) to you in respect of:<br />13.1.1 any breach of our contractual obligations arising under this Agreement; and<br />13.1.2 any representation statement or tortuous act or omission including negligence arising under or in connection with this Agreement<br />AND YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 13.<br />13.2 Any act or omission on our part or of our employees agents or sub contractors falling within clause 13.1 above shall for the purposes of this clause 13 be known as an &ldquo;Event&rdquo;.<br />13.3 Our liability to you for death or injury resulting from our own or that of our employees&rsquo; agents&rsquo;, or sub contractors&rsquo; negligence shall not be limited.<br />13.4 Subject to the limits set out in clause 13.5.1 below we shall accept liability to you in respect of damage to your tangible property resulting from our negligence or that of our employees agents or sub contractors.<br />13.5 Subject to the provisions of clause 13.3 above our entire liability in respect of any Event shall be limited to damages of an amount equal to:<br />13.5.1 &pound;125,000 in the case of an Event falling within clause 13.4 above; and<br />13.5.2 in the case of any other Event 125% of the aggregate of fees paid by you under this Agreement for Materials and Maintenance during the last year.<br />13.6 Subject to clause 13.3 above we shall not be liable to you in respect of any Event for loss of anticipated and/or actual profits, loss of revenue, loss of business, goodwill or reputation, loss of opportunity, loss or corruption of data, loss of use of money or any type of special indirect or consequential loss (including loss or damage suffered by you as a result of an action brought by a third party) even if such loss was reasonably foreseeable or we had been advised of the possibility of the Licensee incurring the same.<br />13.7 Under no circumstances shall we be liable to rectify or restore lost or corrupted data or to bear the cost of rectification or restoration of the same.<br />13.8 If a number of Events give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.<br />13.9 You agree to afford us not less than 90 days (following written notification thereof by you) in which to remedy any breach by us of any of our obligations under this Agreement. In the event the breach in question is so remedied within the aforementioned period, then we shall be deemed to have fully complied with our obligations under this Agreement.<br />13.10 Nothing in this clause shall confer any right or remedy upon you to which you would not otherwise be legally entitled.<br />13.11 The Licensed Programs are not designed or intended for use in the context of hazardous environments or applications or for safety critical systems. You undertake not to use the Licensed Programs for any such purpose and to indemnify us from all and any liabilities losses costs claims and expenses incurred or sustained by us in relation to the use or application of any Licensed Program for any such purpose.<br />13.12 You accept that any loss under this Agreement may be adequately guarded against by the taking out of appropriate insurance by You.<br /><br />14. Risk in the Materials<br />Risk in the Materials will pass to you upon the date of delivery. If subsequently the Materials are (in whole or in part) destroyed damaged or lost we will upon request replace the same subject to you paying our then prevailing charges.</p>
<p>15. Confidentiality<br />15.1 Each of us undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of this Agreement save that which is:<br />15.1.1 trivial or obvious;<br />15.1.2 already in its possession other than as a result of a breach of this clause; or<br />15.1.3 the public domain other than as a result of a breach of this clause.<br />15.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 15.1 above by its employees agents and sub contractors.<br /><br />16 Duration of Agreement - This Agreement shall continue until terminated in accordance with the provisions of clause 18 below.</p>
<p>17 Licensee&rsquo;s representatives<br />You shall notify us upon the date hereof of the identity of the person(s) or the department within your undertaking at the Site who shall act as the sole contact point and channel of communication for the provision by us of the Services during the currency of this Agreement. You shall forthwith inform us of any change in the identity of any such person(s) or department.<br /><br />18 Termination<br />18.1 This Agreement may be terminated:<br />18.1.1 by you upon giving not less than 90 days written notice prior to the commencement of any Renewal Period <br />18.1.2 forthwith by either party if the other commits any material breach of any term of this Agreement (other than one falling within 18.1.1 or 13.9 above) and which (in the case of a material breach capable of being remedied) shall not have been remedied within 21 days of a written request to remedy the same. For the avoidance of doubt, breach of any of your obligations relating to the intellectual property rights in the Materials or confidentiality shall not deemed capable of remedy;<br />18.1.3 forthwith by either party if the other shall arrange or convene a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction) or if anything analogous to any of the foregoing under the laws of any other jurisdiction occurs in relation to either party.<br />18.2 Any termination of this Agreement pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination including (without limitation) clauses 7, 9.6.11, 10, 11, 12, 13, 15, 19 and 20.<br />18.3 Subject to clause 18.4 below within 7 days of the termination of this Agreement (howsoever and by whomsoever occasioned) you shall at our sole option either return all copies of the Materials in your possession or control or shall destroy all copies of the Materials in its possession or control and your duly authorised officer shall certify in writing under oath to us that you have complied with your obligation as aforesaid.<br />18.4 Notwithstanding the provisions of clause 18.3 above you shall be entitled for a period of 2 years from the date of termination to keep one copy of the Materials free of charge in a fire proof room for archival purposes. If you wish to access any of the Licensed Programs you shall forthwith become liable to pay to us our then current Standard Charges for the use of the Licensed Programs or any equivalent software then licensed in substitution for the Licensed Programs.<br />18.5 In the event of termination you shall not be entitled to a refund of the Maintenance Charge, Annual Licence Fee or any Standard Charge which has been paid and you will be obliged to pay any of the same which has been incurred or has accrued due prior to the date of termination.<br /><br />19 Non-Solicitation<br />We both devote significant financial and other resources to the training and development of our staff. Accordingly, we both agree that either party will not during the continuance of the Licence or for a period of 12 months after the termination thereof directly or indirectly solicit, or endeavour to entice away, offer employment to or otherwise engage any member of our managerial, sales or technical staff (including, without limitation, programmers or any individual engaged by either party on a contract basis (whether directly or through a company) of the other. We both agree that, in the event of any breach of this obligation on by one party, the party in breach will pay to the other on demand by way of liquidated damages a sum equal to 12 months salary or (in the case of contract staff) 12 month contract fees, in either case at the rate applicable at the date of termination of employment or engagement of the relevant individual with the aggrieved party. <br /><br />20 Force Majeure<br />20.1 We shall not be liable for any breach of our obligations hereunder resulting from causes beyond our reasonable control including but not limited to fires strikes (of our own or other employees) insurrection or riots, system or program failure, embargoes or delays in transportation acts or omissions of suppliers or sub-contractors inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an &ldquo;Event of Force Majeure&rdquo;).<br />20.2 We agree to give notice as soon as reasonably practicable to you upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.<br />20.3 If a default due to an Event of Force Majeure shall continue for more than 12 weeks then you shall be entitled to terminate this Agreement. We shall not have any liability to you in respect of the termination of this Agreement as a result of an Event of Force Majeure.<br /><br />21 Waiver<br />The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.</p>
<p>22 Notices<br />Any notice request instruction or other document to be given hereunder shall be sent by registered post or recorded delivery or the equivalent. Notification that notice is to be given may be sent by e-mail or facsimile transmission but in both cases must be followed up by registered post or recorded delivery as above. Notice/notification to be sent to the address or to the facsimile number or e-mail address of the other party set out in this Agreement (or such other address or numbers as may have been notified).</p>
<p>23 Invalidity and Severability<br />If any provision of this Agreement or any part thereof shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such provision or part thereof shall be severed and the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement or any part thereof and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect.</p>
<p>24 Entire agreement<br />This Agreement (which includes the Order) is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and arrangements, written or oral. Signature by you of the Order constitutes your acceptance of the terms of this Agreement in full. We shall not be liable to you for loss arising from or in connection with any representations agreements statements or undertakings express or implied made prior to the date of execution of this Agreement other than those representations agreements statements or undertakings expressly incorporated in this Agreement. Any terms and conditions of any purchase order or other correspondence or document provided by you to us in connection with this Agreement will not apply unless expressly accepted in writing by us in the Order. This Agreement can be executed in counterparts electronic or otherwise.<br /><br />25 Successors<br />This Agreement shall be binding upon and enure for the benefit of the successors in title of the parties hereto.<br /><br />26 Assignment and sub licensing<br />26.1 You shall not be entitled to assign or otherwise transfer this Agreement nor any of your rights or obligations hereunder nor sub license the use (in whole or in part) of the Materials without our prior written consent.<br />26.2 We may sub-contract the performance of our obligation under this Agreement in whole or in part.<br /><br />27 Taxes and duties <br />All amounts stated in this Agreement are expressed exclusive of taxes and duties arising which shall be paid by you <br /><br />28 Headings<br />Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.<br /><br />29 Third Parties<br />A person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of<br />this Agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.</p>
<p>30 Export Restrictions<br />Licenced Programs may not be exported or used in a different country to that of the original site. As detailed in clause 5 the location may be changed on grant of permission by us such grant will not unreasonably be withheld.</p>
<p>31 Law<br />This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the exclusive jurisdiction of the English courts.</p>
<p>&nbsp;</p>
<p>Addendum</p>
<p>Schedule</p>
<p><br />365Furniture Prerequisites: D365 D&amp;O</p>
<p>Prices are based on a per user basis such that the Furniture user count must match.</p>
<p>Maintenance is renewable annually in advance at a percentage of licence fees as stated on the Order.</p>