STANDARD TERMS AND CONDITIONS FOR END USER LICENCE AGREEMENT (CONDITIONS)

Definitions

Capitalised terms used in these Conditions and the Commercial Terms shall have the following meanings attributed to them or as attributed to them in the Commercial Terms.

Affiliate(s) means in relation to any Party, a person which, directly or indirectly: (i) is Controlled by that Party; (ii) Controls that Party; or (iii) is Controlled by a person referred to in (ii) above, and for this purpose Control means the power of a person to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such person) that the affairs of another are conducted in accordance with its wishes and "Controlled" shall be construed accordingly.

Authorised Systems means the Microsoft Azure cloud solution.

Authorised Users means (i) any individual employee, agent or contractor of Licensee using the Software for sustainability management solely on behalf and for the benefit of Licensee in the operation of Licensee’s business; and (ii) any member of the public authorised by the Licensee pursuant to the terms of this Licence to use the Software.

Data Laws includes the Data Protection Act 2010 and any successor thereto including the General Data Protection Regulations coming into effect on 25 May 2018 and the ePrivacy Directive.

Documentation means any of Licensor’s product documentation, and/or related documentation made available by the Licensor in relation to the Software.

Intellectual Property Rights means all patents, design rights, trademarks, copyrights (including any such rights in typographical arrangements, web sites or software), rights in trading, business or domain names and e-mail addresses, rights in inventions, rights in databases and all other intellectual property rights of a similar or corresponding character which exist now or arise in the future in any part of the world whether registered or not and whether or not capable of registration, and any applications to register or rights to apply for registration of any of the foregoing in all parts of the world.

Software means the Sustainability Suite as more fully described in the Commercial Terms and all upgrades, updates, patches, fixes or other modifications or alterations of the software from time to time.

Trade Marks means any trade mark (whether registered or unregistered), service mark or trade name that Licensor may designate, use or adopt from time to time.

Interpretation

References to clauses, subclauses and schedules are unless otherwise stated references to clauses, subclauses and schedules to this agreement.

References to person or persons include individuals incorporate and unincorporated bodies or partnerships and include reference to that persons’ legal representatives, successors and permitted assigns.

Words and phrases used herein shall where appropriate have the meanings ascribed to them by the Copyright, Designs and Patents Act 1988 as amended by the Copyright and Related Rights Regulations 1996 and 2003.

References to include and including shall be construed without limitation.

Headings are for convenience only and shall not affect the interpretation of this Licence.

References to a Party is reference to a Party to this Licence and references to Parties is a reference to Parties to this Licence.

1. Licence and Usage of Software and Documentation

1. Software License. Licensor hereby grants to the Licensee a non-exclusive, revocable, non-transferable right and license to authorise the Authorised Users to use the Software within the Authorised System during the Licence Period in accordance with terms and conditions of this LIcence. Licensee undertakes to use the Software solely for the Licensee’s own internal business purposes and solely in accordance with the Documentation.

2. Support. Licensor will provide the support and the maintenance set out in Schedule 2. All additional maintenance and support services including any bespoke services shall be provided in accordance with the Master Services Agreement.

3. Documentation Licence. Licensor hereby grants to the Licensee a non-exclusive, revocable, non-transferable right and licence to authorize the Authorised Users to use the Documentation solely in conjunction with the operation of the Software during the Licence Period and to make copies of the Documentation solely for the Licensee’s own internal business purposes.

4. Except as expressly set out in this Licence or as permitted by any local law, Licensee undertakes:

   1. not to copy or to authorise the copying of the Software or Documentation;

   2. not, and shall not authorise any third party to distribute, rent, lease, sub-license, loan, or otherwise transfer the Software or Documentation to any third party (other than as expressly permitted in this Licence);

   3. not, and shall not authorise any third party, to make alterations to, or modifications of, the whole or any part of the Software;

   4. not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

      1. is used only for the purpose of achieving inter-operability of the Software with another software program;

      2. is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it; and

      3. is not used to create any software which is substantially similar to the Software;

   5. to include the Licensor’s copyright notice on all entire and partial copies of the Software in any form and shall not remove any such copyright notices from the Software or Documentation;

   6. not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than its employees, agents, contractors, and authorized representatives without prior written consent from the Licensor.

5. Licensee acknowledges and agrees that the Software and Documentation and its design, structure, and source code constitute valuable trade secrets of the Licensor and its suppliers and licensors and was developed through substantial investment of time, effort and money and constitute valuable, proprietary and unique property of the Licensor. Licensee undertakes to not, and will not authorise any third party to: (i) modify, adapt, alter, translate, or create derivative works from the Software; (ii) only permit the use or merging with other software where so permitted by the Licensor and in such a manner that does not erode, impede or dilute the Intellectual Property Rights of the Licensor (iv) modify the Trade Marks or combine the Trade Marks with any other marks, except with the prior written consent of the Licensor; or (ii) remove, alter, impair, or obscure in any way any proprietary rights notices (including copyright notices) of the Licensor or its suppliers or licensors on or within the units or copies of Software. Licensee will not use the Software or the Trade Marks for any purposes not expressly granted by this Licence.

6. Licensee must not market or distribute the Software or Documentation and shall use the Software only for its own internal business purposes.

7. Licensee shall treat the Software and Documentation as strictly confidential and shall not disclose any information in respect of the Software and/or Documentation in whole or in part to any unauthorized third party without the prior written consent of the Licensor. Licensee shall ensure that its employees, agents, contractors and other authorised representatives comply with the confidentiality and non-disclosure obligations set forth in this Licence.

8. Licensee shall promptly notify the Licensor in writing if the Licensee becomes aware of any unauthorised use of the Software or the Documentation.

9. Licensee hereby authorises the Licensor to visit the offices of the Licensee or remotely access the Licensee’s systems to verify that Licensee’s use of the Software and the Documentation by the Licensee complies with the terms of this Licence, at all reasonable times.

10. Licensee acknowledges and agrees that it shall remain liable for all acts and omissions of Authorised Users. Licensee shall make reasonable efforts to ensure all Authorised Users are aware of the provisions of this Licence and comply with such provisions.

11. The Software may be used in conjunction with third-party products or standards frameworks including GRI and other international sustainability standards from time to time. Further the Software is supplied on the basis that the Licensee undertakes to adhere to and accept the Azure standard terms and conditions available at https://azure.microsoft.com/en-gb/support/legal/. The license granted in this Agreement is restricted to the Software only. The Licensee undertakes to comply with all third party licenses including the Azure Software Terms and Conditions at all times and any failure to do so may result in the immediate termination of this Agreement, without further liability to the Licensor. Licensor makes no warranties or representations as to the operability, compatibility or otherwise of any third party software or documentation including the Azure services and the Licensee acknowledges and agrees that the Licensor shall have no liability whatsoever or howsoever arising as a consequence of the use of such third party software or content including the GRI content or any other international sustainability standard that may be used by the Licensee from time to time.

12. Licensee acknowledges and agrees that the Software may be inoperable or may not function to its specification if used in conjunction with any third party software not approved in writing and recommended by the Licensor and as such the Licensor shall not be liable to the Licensee for any use of the Software for any use for which it is not intended to be used in accordance with the Documentation or with the accompanying third party recommended software.

2. Licence Fee and Payment Provisions

1. In consideration of the licenses granted herein, the Licensee shall pay to the Licensor the Licence Fee.

2. Licensee shall pay the Licence Fee within seven (7) days after commencement of the Licence Period. All payments are non-refundable except as otherwise provided in this Licence. The Licence Fee shall be payable in British Pounds Sterling unless otherwise specified in the Commercial Terms. For any amounts due to the Licensor under this Licence and not received by the date due for payment, the Licensor shall be entitled to charge interest on the overdue amount at the rate of 3% per month over the base rate of the Bank of England (or the highest rate permitted by law, if less). Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. Licensee is responsible for all reasonable expenses (including reasonable solicitor’s fees) incurred by the Licensor in collecting unpaid or delinquent amounts, except where such amounts are related to billing inaccuracies attributable to the Licensor. The payments set out above are a substantial remedy for any outstanding payments and are in lieu of any sums due pursuant to the Late Payment of Commercial Debts (interest) Act 1998 and/or the Late Payment of Commercial Debts Regulations 2002.

3. All amounts due under this Licence shall be paid by the Licensee to the Licensor in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

4. The Licence Fee is exclusive of any local value added tax or relevant local sales tax for which the Licensee shall be liable.

5. All amounts payable by the Licensee to the Licensor under this Agreement are exclusive of value added tax, sales tax and any other present or future taxes, levies, duties or charges.  Any such taxes, levies, duties or charges shall be paid by the Licensee to the Licensor in the manner and at the rate from time to time required by law.

6. Where the Licensee is resident within the EU, the Licensee warrants that services provided under this Agreement are treated as an Intra-Community supply of Services for Value Added Tax purposes and the Licensee will account for Value Added Tax in its place of domicile using the reverse charge process.

7. Licensee shall provide the Licensor with its valid EU VAT registration number.  If the Licensee cannot provide such VAT registration number, the Licensor reserves the right to charge UK VAT on the supplies and the Licensee shall indemnify the Licensor for all VAT due.

8. In the event a ruling is received by the Licensor that all or some of the services it provides to the Licensee pursuant to this Agreement are and have been subject to VAT from a retrospective date, the Licensee shall indemnify the Licensor on demand for all penalties and interest levied on the Licensor as a result of that ruling.

9. In the event that any Taxation or Governmental Authority carries out an enquiry in respect of the treatment of this Agreement for Value Added Tax purposes the Licensee agrees to promptly and accurately and fully respond to any reasonable request made by the Licensor to the Licensee in respect of such enquiry.

10. Each Party shall be responsible for its own tax liabilities in their respective domicile, including any company or corporate tax, national taxes federal or state and all such payments hereunder shall be made without any deduction other than withholding (if applicable).  In the event that either Party is obliged to make a payment for withholding tax, then the Party who is responsible shall pay the amount withheld promptly to the appropriate authority and shall provide the other Party with a verified original document (or other reasonable evidence) certifying that the amounts withheld has or will be accounted for to the appropriate authority.

3. Delivery

Upon the Licence Period start date the Licensor shall provide access to the Software and Documentation for use by the Licensee in accordance with the terms of this Licence. The Software and the Documentation shall be deemed to be delivered upon the granting of access by the Licensee of the Software.

4. Software Support

Subject to the Licensee’s payment of the Licence Fee the Licensor shall provide all agreed support to the Licensee with respect to all support issues. The License Fee entitles the Licensee to receive, without further payment, updates and bug fixes in accordance with Licensor’s policies as provided on the Licensor’s website.

5. Warranties and Disclaimers

1. The Licensor warrants to the Licensee that the Software shall materially perform in accordance with the Documentation for a period of ninety (90) days from the Effective Date. All warranties hereunder extend only to the Licensee and only respect of the Software. No warranty is made in relation to any third party software or operating system upon which the Software may operate.

2. The Licensor is not liable for any failure or deficiency of the Software caused by the Licensee’s acts or omissions (or acts or omissions of others engaged or authorised by the Licensee) including custom scripting or coding (e.g., CGI, Perl, HTML, ASP, etc.), any negligence, wilful misconduct and outages elsewhere on the Internet that hinder access.

3. Except as set forth in this clause 5, the Software is provided “as is” without any warranty of any kind. Without limiting the foregoing, all other conditions, warranties or other terms that might have effect between the Parties or be implied or incorporated into this Licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, merchantability, fitness for a particular purpose, non-infringement, or the use of reasonable skill and care. The Licensor does not warrant that the operation of the Software will be uninterrupted, error-free, or secure.

6. Limitation of Liability and Indemnity

1. The following provisions set out the entire liability of the Licensor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Licensee in respect of:

   1. any breach of this Licence by the Licensor howsoever arising; and

   2. any representation, misrepresentation (whether innocent or negligent) statement or tortious act or omission (including without limitation negligence) arising under or in connection with this Licence.

2. Nothing in this Licence excludes either Party:

   1. for death or personal injury caused by the Licensor’s negligence;

   2. for fraud or fraudulent misrepresentation; or

   3. for any other matter for which it is unlawful to exclude liability.

3. In no event will either Party be held liable under this Licence, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any special, indirect, consequential, exemplary or punitive damages, including: (i) loss of profits; or (ii) loss of business; or (iii) depletion of goodwill or similar losses; or (iv) loss of anticipated savings; or (v) loss of goods; or (vi) loss of use; or (vii) loss or corruption of data or information.

4. Except for the Licensor’s indemnity obligations set out in clause 6.5 and those exclusions set forth in clause 6.2, the Licensor’s total aggregate liability to the Licensee in contract, tort (including, without limitation, negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Licence shall in all circumstances be limited to the total fees paid to the Licensor by the Licensee for the Software under this Licence by the Licensee during the prior six-month period.

5. Licensor hereby undertakes to defend and indemnify the Licensee from any losses, liabilities, damages, and related costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim, suit, or proceeding (Claim) brought against the Licensee by a third party to the extent that such Claim alleges that the Software infringes any patent, copyright or trademark. Notwithstanding anything to the contrary in this clause, the Licensor will not be liable for any settlements or similar payments made by the Licensee without Licensor’s prior written authorisation. Notwithstanding the foregoing, the Licensor shall have no obligation for any such Claim to the extent such Claim arises out of or is related to (a) the unauthorised modification of the Software by any person or entity other than the Licensor; or (b) the combination of the Software with any hardware, firmware, or software not supplied, specified or authorized by the Licensor. In addition, the Licensor will have no obligation hereunder for any such Claim to the extent that such Claim may have been reasonably avoided but for the Licensee’s breach of this Licence or Licensee’s misconduct or wrongful or negligent acts. If the Software becomes, or in Licensor’s opinion is likely to become the subject of any infringement claim, the Licensor will either (i) procure for the Licensee the right to continue using the Software; (ii) replace or modify the Software so it becomes non-infringing, provided that any such replacement or modification will not degrade the performance or quality of the Software; or (iii) if the Licensor cannot accomplish either of the foregoing using commercially reasonable efforts, accept return of the Software for a pro-rata refund and terminate this Licence. Licensee shall (a) give the Licensor notice of the relevant Claim within 5 business days of receiving notification of the Claim (provided that failure to notify Licensor within such period will not relieve Licensor from any of its obligations under this clause except and only to the extent that Licensor is materially prejudiced by such delay); (b) cooperate with the Licensor in the defense of such Claim; and (c) give the Licensor (as applicable) the right to control the defence and settlement of any such Claim. Notwithstanding the foregoing, Licensee may join in the defence of a Claim with its own counsel at its own expense. The Licensee shall not make any attempt or agree to settle the Claim without the prior written consent of the Licensor (as applicable).

6. Licensee hereby undertakes to indemnify and hold the Licensor harmless, on demand, from any and all claims, actions, costs (including reasonable legal costs) damages, demands or expenses brought against, suffered or incurred by the Licensor as a result of any breach, or non-observance by the Licensee of any of the Licensee’s agreements, obligations, representations, undertakings or warranties in this Licence.

7. The indemnifying Party shall have control over the defence of the Claim. Notwithstanding the foregoing, the indemnified Party shall take all reasonable steps to mitigate any loss or damage it may suffer.

7. Intellectual Property Rights

1. Licensee acknowledges and agrees that Licensor is the legal and beneficial owner and/or licensee of all Intellectual Property Rights in the Software and Documentation and nothing herein is intended to grant to Licensee any right, title or interest in the Software save for the limited licence granted to the Licensee in this Licence.

2. In the event that any enhancement or modification of the Software and the Documentation are made during the Licence Period, the Licensee agrees that the same (and all Intellectual Property Rights therein) shall remain the sole legal and beneficial property of Licensor. The Licensee shall, at the expense of the Licensor, take all such steps as the Licensor may reasonably require to assist Licensor in maintaining the validity and enforceability of the Intellectual Property Rights of Licensor with respect to any such enhancements or modifications.

3. Licensee shall not do or authorise any third party to do any act which would or might invalidate or be inconsistent with any Intellectual Property Rights of Licensor with respect to the Software, the Documentation or the Trade Marks, and shall not omit or authorise any third party to omit to do any act which, by its omission, would have that effect or character.

4. Licensor makes no representation or warranty with respect to non-infringement or as to the validity or enforceability of the Intellectual Property Rights in the Software, Documentation and the Trade Marks.

5. Licensee shall not (i) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of Licensor therein; (ii) use in relation to the Software any trademarks other than the Trade Marks without obtaining the prior written consent of Licensor; or (iii) use any trademarks or trade names so resembling any Trade Mark or trade names of Licensor as to be likely to cause confusion or deception.

8. Term and Termination

1. This Licence shall commence on the Effective Date and shall continue for the Licence Period.

2. The Licensor shall be entitled to terminate this Licence by providing notice in writing to the Licensee if the Licensee commits a material breach of this Licence and such breach is not cured within 15 days of written notice from the Licensor or if the Licensee becomes insolvent, is unable to pay its debts as and when they fall due, or has a liquidator, receiver, administrator or administrative receiver appointed or any other similar event.

3. Upon termination of this Licence, if so required by the Licensor the Licensee shall return the Software and the Documentation and all copies thereof to the Licensor or, at the option of the Licensor, shall destroy the same and certify to the Licensor that they have been so destroyed. The Licensee shall also cause the Software to be erased from its computer systems and shall certify to the Licensor that the same has been done. Licensee shall pay the Licensor any outstanding amounts owed to Licensor by Licensee under this Licence up to and including the date of termination, such payment to be without prejudice to any other rights or remedies of the Licensor.

9. Data and Data Processing

9.1 If and to the extent the Licensee provides Licensee Personal Data to the Licensor for processing if at all, the Licensor will process your personal data in accordance with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time (GDPR). Schedule 1 and the Licensor’s privacy policy sets out the terms upon which we process personal data. All servers upon which your data will be stored will be located within the European Union unless otherwise specified in the Commercial Terms. Notwithstanding the foregoing, it is intended that the Licensor will not be a data processor but will simply provide the software platform and dashboard to enable the Licensee to control and process its own Licensee Personal Data as the term is defined in Schedule 1.

9.2 Notwithstanding clause 9.1 and Schedule 1 to this Licence, to the extent possible when using the Software the Licensee shall only use anonymized personal data when using the Software.

10. Governing Law

This Licence shall be governed and construed in accordance with the laws of England and Wales. The Parties hereby agree to submit to the exclusive jurisdiction of the courts of England.

11. Licensor

Licensee acknowledges that the Licensor enters into this Licence on its own behalf. Except as provided in this clause, a person who is not a Party to this Licence has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Licence.

12. Variation

This Licence may be modified, terminated or extended and the terms or covenants waived only by written instrument signed by both Parties.

13. Assignment

This Licence is personal to the Licensee and the Licensee shall not assign, sub-license or otherwise transfer this Licence or any of its rights or obligations hereunder whether in whole or in part without the prior written consent of the Licensor.

14. Force Majeure

Neither Party shall be liable for any delay in performing any of its obligations hereunder (other than the payment of amounts owed to the Licensor by Licensee under the terms of this Licence), if such delay is caused by an event that is unforeseeable and circumstances beyond the reasonable control of the Party so delayed, and cannot be remedied by the exercise of reasonable diligence. Any Party impacted by a force majeure event shall be entitled to a reasonable extension of time for the performance of such obligations, provided that such Party promptly notifies the other Party of such event, keeps the non-affected Party notified of the anticipated impact on and delay with respect to its performance, and makes reasonable efforts to mitigate the effects of such force majeure event.

15. Entire Agreement

In entering into this Licence, the Licensee acknowledges and agrees that it has not relied on any statement, warranty, representation or undertaking save as expressly set out in this Agreement (save that neither Party seeks to exclude liability for any fraudulent pre-contractual misrepresentation upon which the other Party can be shown to have relied).

16. Waiver

No forbearance, delay or indulgence by either Party in enforcing the provisions of this Licence shall prejudice or restrict the rights of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either Party is exclusive of any other right, power or remedy available to that Party and each such right, power or remedy shall be cumulative.

17. Relationship of the Parties

Licensor, in providing the services contemplated by this Licence, is acting as an independent contractor. The Parties are independent contractors.

18. Notices

1. Any notice to be given shall be in writing and delivered personally or registered post, postage prepaid, to the address first written above or such other address as either Party may designate upon written notice to the other. Notice shall be deemed received at the earlier of actual receipt or three business days following posting.

2. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause, "writing" shall include e-mail.

18. Execution

This Licence may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Executed signature pages of this Agreement transmitted electronically either as Tagged Image Format Files (TIFF) or in Portable Document Format (PDF) shall be treated as originals, fully binding and with full legal force and effect, and the Parties waive any rights they may have to object to such treatment, provided that this treatment shall be without prejudice to the obligation of the Parties to exchange original counterparts as quickly as practicable after execution of this Agreement.

19. Anti-Bribery and Modern Slavery

19.1 Each Party represents to the other that it will comply with all applicable laws, regulations and administrative requirements and will take no action that would subject itself or the other Party to liability and/or penalties particularly under the Bribery Act 2010, Foreign Corrupt Practices Act and Modern Slavery Act.

19.2 Additionally, each Party represents to the other Party and their respective owners, partners, directors, officers and employees shall not offer nor deliver to any third party (public officers included), any payments, offers, promissory notes, of any valuable goods, or engaged in acts or transactions otherwise in violation of the relevant anti-bribery laws and regulations including the Bribery Act 2010.

19.3 Either Party will be entitled to immediately terminate this Agreement for cause without prior notification, in case of breach by the other Party of any of its anti-bribery related warranties or in case of violation by the other Party of any applicable local anti-bribery laws or regulations.

19.4 Each Party warrants and represents to the other Party that it has taken all reasonable steps to ensure that it has fully complied with the obligations under the Modern Slavery Act 2015 (UK).

SCHEDULE 1

PERSONAL DATA PROCESSING TERM AND CONDITIONS

1. INTRODUCTION

1. The Licensor has agreed to licence to the Licensee the Software under the terms of this License and to provide certain support and maintenance services under the MSA (Services). To the extent that the Licensor is processing Licensee Personal Data as part of the Services, the terms contained in this Schedule 1 will apply.

2. If the Services are altered during the term of this Licence and the MSA and the altered Services involve new or amended processing of Licensee Personal Data, the parties will ensure that Annex 1 to this Schedule 1 is updated as appropriate before such processing commences.

3. If there is any conflict or inconsistency between this Schedule 1 and the Licence, this Schedule will take precedence and apply to the extent of the conflict or inconsistency.

4. In respect of all processing of Licensee Personal Data carried out pursuant to the License and MSA, the parties agree that the Licensor is the processor and that the Licensee is the controller.

5. The parties shall comply with and process all Licensee Personal Data in accordance with applicable Data Protection Legislation.

2. Definitions

1. For the purposes of this Schedule, capitalised terms shall have the meanings given below:

1. Applicable Law means (i) any and all laws, statutes, regulations, by-laws, orders, ordinances and court decrees that apply to the performance and supply of the Services or the processing of Licensee Personal Data, and (ii) the terms and conditions of any applicable approvals, consents, exemptions, filings, licences, authorities, permits, registrations or waivers issued or granted by, or any binding requirement, instruction, direction or order of, any applicable government department, authority or Licensor having jurisdiction in respect of that matter.

2. Data Protection Legislation means all Applicable Laws and codes of practice applicable to the processing of personal data including the GDPR.

3. DP Losses means all liabilities, including all:

   1. costs (including legal costs), claims, demands, actions, settlements, ex-gratia payments, charges, procedures, expenses, losses and damages (including relating to material and non-material damage); and

   2. to the extent permitted by Applicable Law:

      1. administrative fines, penalties, sanctions, liabilities or other remedies imposed by a court or regulatory authority;

      2. compensation to a data subject ordered by a court or regulatory authority; and

      3. the costs of compliance with investigations by a regulatory authority.

4. GDPR means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data as applicable as of 25 May 2018, as may be amended from time to time.

5. Licensee Personal Data means personal data provided or made available to the Licensor, or collected or created for the Licensee, in connection with the Services Agreement as described in more detail in Annex 1.

6. Processing Instructions has the meaning set out in clause 3.2.1 of this Schedule 1.

7. Security Incident means the accidental or unlawful destruction, loss, alteration or unauthorised disclosure of, or access to, Licensee Personal Data while in the custody of the Licensor or a Sub-Processor.

8. Sub-Processor means another processor engaged by the Licensor for carrying out processing activities in respect of the Licensee Personal Data on behalf of the Licensee.

9. “controller”, “data subject”, “personal data”, “processing” and “processor” have the meanings set out in the GDPR (and related terms such as “process” have corresponding meanings).

3. Processing

1. Annex 1 to this Schedule 1:

   1. describes the processing of Licensee Personal Data permitted in connection with the Services;

   2. lists the Sub-Processors (if any) who the Licensee agrees may process Licensee Personal Data; and

   3. sets out the circumstances (if any) in which the Licensee agrees Licensee Personal Data may be disclosed to a country outside the European Economic Area.

2. The Licensor shall:

   1. unless Applicable Law requires otherwise, only process Licensee Personal Data on and in accordance with the Licensee’s documented instructions as set out in this Schedule or otherwise in writing (Processing Instructions);

   2. unless prohibited by Applicable Law, notify the Licensee if Applicable Law requires it to process Licensee Personal Data other than in accordance with Processing Instructions (such notification to be given before such processing commences); and

   3. notify the Licensee if, in its opinion, the processing of Licensee Personal Data in accordance with Processing Instructions infringes Data Protection Legislation.

3. The Licensor shall not permit any Sub-Processor to process Licensee Personal Data without:

   1. the Licensee’s prior written approval (not to be unreasonably withheld, conditioned or delayed) (such approval having already been provided in respect of those Sub-Processors listed in Annex 1); and

   2. entering into a contract which binds the Sub-Processor to substantially similar obligations with respect to the processing of Licensee Personal Data as to which the Licensor is bound by this Agreement, and

the Licensor agrees that if a Sub-Processor fails to fulfil its obligations under the contract required by clause 3.3.2 of this Schedule 1, the Licensor shall remain fully liable to the Licensee for the Sub-Processor’s performance.

4. After the business purposes for which Licensee Personal Data was processed have been fulfilled (or earlier upon the Licensee’s written request) the Licensor shall, at the Licensee’s option, either delete or return all Licensee Personal Data and delete any existing copies of the same (unless storage of such copies is required by Applicable Law).

4. Licensee Warranties

1. The Licensee warrants and represents that:

   1. the processing of Licensee Personal Data by the Licensee will be carried out in accordance with Data Protection Legislation;

   2. the Licensor is entitled to process Licensee Personal Data pursuant to the Licence and MSA for the purpose of providing the Services and such use will comply with Data Protection Legislation;

   3. all Licensee Personal Data provided by the Licensee to the Licensor is necessary, accurate and up-to-date;

   4. all Processing Instructions shall at all times be in accordance with Data Protection Legislation; and

   5. it is satisfied that:

      1. the Licensor’s processing operations are suitable for the purposes for which the Licensee proposes to use the Services and engage the Licensor to process Licensee Personal Data; and

      2. the Licensor has sufficient expertise, reliability and resources to implement technical and organisational measures that meet the requirements of Data Protection Legislation.

5. Security and Delegation

1. The Licensor shall:

   1. Use the Azure Microsoft cloud solution for hosting of the Software and only offers the technical and organisational measures intended to protect Licensee Personal Data against accidental, unauthorised or unlawful access, disclosure, alteration, loss, damage or destruction as offered under the Azure Standard Terms and Conditions of use; and

   2. take reasonable steps to ensure that its personnel do not process Licensee Personal Data other than in accordance with Processing Instructions (unless required to do so by Applicable Law) and are obligated to maintain the security and confidentiality of any Licensee Personal Data to which they have access.

2. Licensee in executing this Agreement accepts that the Licensor is not liable for any breach or default of Microsoft under the Azure cloud service terms and conditions and hereby releases and forever forgives the Licensor or any breach by Microsoft or security breach of otherwise arising out of the cloud hosting services provided by Microsoft and acknowledges and agrees that Microsoft remains solely liable for inter alia, any security breach, negligent act or omission or otherwise arising out of the provision of the hosting services.

6. Notifications

1. The Licensor shall, without undue delay, notify the Licensee if:

   1. it becomes aware of a Security Incident; or

   2. it receives a request from or on behalf of a data subject of Licensee Personal Data to exercise any of the rights given to data subjects by Data Protection Legislation.

2. The Licensor shall (at the Licensee’s expense) provide such further information and assistance as the Licensee reasonably requires in handling and responding to such notifications in accordance with its obligations under Data Protection Legislation.

7. Inspections and Assistance with Regulators

1. Subject to reasonable written advance notice from the Licensee the Licensor and subject to the Azure standard terms and conditions shall:

   1. permit the Licensee to conduct (and shall contribute to) audits and inspections of its systems and processes in relation to the processing of Licensee Personal Data subject to the Licensee ensuring:

      1. that such audit or inspection is undertaken during normal business hours and with minimal disruption to the Licensor’s business and the business of other Licensees of the Licensor; and

      2. that all information obtained or generated by the Licensee or its auditor(s) in connection with such audits and inspections is kept strictly confidential (save for disclosure to a regulatory authority or as otherwise required by Applicable Law);

   2. give the Licensee such information as is reasonably necessary to verify that the Licensor is in compliance with its obligations under Data Protection Legislation; and

   3. co-operate and assist the Licensee with any data protection impact assessments and consultations with any regulatory authority that the Licensee reasonably considers are relevant pursuant to Data Protection Legislation in relation to the Licensee Personal Data.

2. The cost of such audit, inspection, provision of information or data protection impact assessment shall be borne by the Licensee.

3. The Licensee may require the Licensor to conduct an audit or inspection of the Sub-Processor’s systems and processes in relation to the processing of Licensee Personal Data. The cost of such an audit or inspection shall be borne by the Licensee.

8. Indemnity and Limitation of Liability

1. Subject to the limitation in clause 8.3, the Licensee shall indemnify and keep indemnified the Licensor in respect of all DP Losses suffered or incurred by, awarded against or agreed to be paid by, the Licensor and any Sub-Processor arising from or in connection with any:

   1. non-compliance by the Licensee with Data Protection Legislation;

   2. processing carried out by the Licensor or any Sub-Processor pursuant to any Processing Instruction that infringes Data Protection Legislation; or

   3. breach by the Licensee of any of its obligations under this Agreement,

except to the extent that the Licensor is liable under clause 8.2.

2. Subject to the limitation in clause 8.3, the Licensor shall indemnify the Licensee for DP Losses (howsoever arising, whether in contract, tort (including negligence) or otherwise) under or in connection with this Agreement:

   1. only to the extent caused by the processing of Licensee Personal Data under this Agreement and directly resulting from the Licensor’s breach of this Agreement; and

   2. in no circumstances to the extent that any DP Losses (or the circumstances giving rise to them) are contributed to or caused by any breach of this Agreement by the Licensee or by Azure services or any third party software or services provided under the MSA or this Licence.

3. The parties’ total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited to 100% of the fees paid or payable during the 12 months preceding the event triggering clause 8.1 or 8.2.

SCHEDULE 2

SUPPORT LEVELS

SERVICES INCLUDED WITHIN THE LICENCE

1. ANNEX 1