These Terms govern Your interactions with Ampliphae via the Microsoft Azure Marketplace, which is operated by Microsoft and from which You are procuring Ampliphae Products and Services. 
These Terms are agreed between Ampliphae Ltd (the Supplier), a company registered in Northern Ireland under company number NI625264 with its registered office at the Innovation Centre Queens Road, Queens Island, Belfast, Co. Antrim, BT3 9DT and You (the Customer) when you use the Microsoft Azure Marketplace to purchase or trial Ampliphae Products or Services. 
These Terms apply to any Services provided by the Supplier (the Supplier Service or Supplier Services) and purchased via the Azure Marketplace. Each Supplier Service shall be more particularly described in the Service Description published via the Azure Marketplace and/or provided to the Customer directly. 


Agreed Terms
1.	Interpretation
The following definitions and rules of interpretation apply in these Terms.
1.1	Definitions
Appliance	:	means a physical computing device pre-installed with one or more components of the Supplier Software, used in the provision of the Supplier Services, and installed in an appropriate location (for example in the Customer Premises);
Authorised Representative	:	a person engaged or employed by the Customer and appointed to represent the Customer in any dealings with the Supplier and identified in the Order;
Authorised Users	:	means any person whom the Customer authorises (and whom the Supplier accepts) to access the Supplier Services or use the Supplier Software;
Azure Marketplace	:	means the online marketplace provided by Microsoft at https://azuremarketplace.microsoft.com/ ;
Business Day	:	means any day which is not a Saturday or Sunday, Christmas Day, Good Friday or a bank holiday in Northern Ireland;
Confidential Information	:	means all information or data disclosed (whether in writing, orally or by any other means) to one Party by the other Party or by a third party on behalf of the other Party and shall include but not be limited to	:	
any information ascertainable by the inspection or analysis of samples, software, documents or products; 
any information relating to that Party’s business, operations, finances, technology, processes, plans, intentions, product information, know-how, design rights, trade secrets, software, market opportunities, customers or business affairs, or any such information relating to a subsidiary, supplier, or customer; and more specifically,
any inventions, product plans, design plans, financial plans, computer programmes (including source and object code materials), customer information, subscription fees and product pricing, databases, go-to-market strategies, PR plans, technical information, business processes, details of patents applied for or pending, and other similar information;
Customer Data	:	means all data, information, text, software, executable code, images, audio or video material and other materials in any form or medium (including derivatives) relating to the Customer (and/or its customers) and which may be accessed, generated, collected, stored or transmitted by the Supplier in the course of the performance of the Supplier Services, including any User Content and Monitored User Data;
Customer Premises	:	means the Customer’s site(s) shown in the Order, or as agreed in writing by the Customer and the Supplier;
Data Controller	:	has the meaning given to that term (or to the term ‘controller’) in Data Protection Legislation;
Data Processor	:	has the meaning given to that term (or to the term ‘processor’) in Data Protection Legislation;
Data Protection Legislation	:	means as applicable the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679) (the GDPR) and any national implementing laws, regulations and secondary legislation, including that which transposes or gives effect to the GDPR in the UK after the UK has withdrawn from the European Union and is no longer subject to transitional arrangements);plus any successor legislation to the Data Protection Act 2018 and the GDPR, any subordinate legislation and codes of practice made thereunder and any other data protection legislation applicable to the Parties or the Supplier Services;
Data Subject	:	has the meaning given to that term in Data Protection Legislation;
Developed Materials	:	means any materials, including software, developed by the Supplier solely for the Customer whilst carrying out the Supplier Services;
Documentation	:	means written materials related to the planning, deployment, use or other aspects of the Supplier Services or Supplier Software, which may be produced or delivered in electronic or paper format;
EEA	:	means all countries within the European Economic Area;
Fees	:	means the charges for Supplier Services detailed in the Order or Service Description;
Good Industry Practice	:	means standards, practices, methods and procedures in compliance with appropriate legislation and the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person or body engaged in a similar type of undertaking under the same or similar circumstances;
"Heightened Cyber Security Requirements"	:	means any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time;
Infrastructure	:	means any hardware, computer equipment, infrastructure, software, remote links, network connections or equipment, or any other facilities or additional services required to access the Supplier Services;
Intellectual Property Rights	:	means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks;
Monitored User	:	means any person who makes use of the Customer networks or systems (and who may be authorised to access the Supplier Services or use the Supplier Software from time to time);
Monitored User Data	:	means any data generated by or on behalf of a Monitored User, including all text, information, data, images, audio or video material, in whatever medium or form; and all information related to any Monitored User that is processed or stored by the Supplier Software or collected in the course of providing the Supplier Services, including data about their use of Customer networks and systems and access to web sites and applications wherever hosted; 
Order	:	means an ordering document used to transact for Products and/or Services via the Marketplace;
Personal Data	:	has the meaning given to that term in Data Protection Legislation;
Pre-Existing Intellectual Property Rights	:	means any Intellectual Property Rights which were developed by a party either prior to or independently of these Terms whether before or following the Effective Date which includes but is not limited to all Intellectual Property Rights in generic formats, tools or methodologies of a Party;
Processing Instructions	:	Means the written documented instructions referred to in Article 28 (and Article 29) of the GDPR and as further described elsewhere in Data Protection Legislation;
Protected Data	:	means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under these Terms;
Supplier Software	:	means software owned or licensed by the Supplier and which may be located on Supplier servers in a public cloud, or delivered pre-installed on Appliances or delivered for install on Customer computer equipment, which is used in the provision of the Supplier Services;
User Account	:	means the account held and maintained with the Customer by any Authorised User as a prerequisite to accessing and using the relevant Supplier Services;
User Content	:	means all text, information, data, images, audio or video material, in whatever medium or form, inputted by any Authorised User in relation to the use of the Supplier Services; and all information related to any Authorised User that is processed or stored by the  Supplier Software or otherwise in provision of the Supplier Services, but excluding all authentication information provided in relation to any User Account.
1.2	Clause, Annex and paragraph headings shall not affect the interpretation of these Terms.
1.3	A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4	A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5	Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6	Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7	These Terms shall be binding on, and enure to the benefit of, the parties to these Terms and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.8	A reference to a regulation, statute or statutory provision is a reference to it as it is in force as at the date of these Terms.  Where future regulations, statutes or statutory provisions or any subordinate legislation is introduced subsequent to this date, the decision as to whether these may fall under these terms rests with the Supplier.
1.9	A reference to these Terms or to any other agreement or document referred to in these Terms is a reference of these Terms or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of these Terms) from time to time.
1.10	Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2.	Services
2.1	In consideration of the Customer paying the Fees to subscribe to the relevant Supplier Service, the Supplier shall grant the Customer a non-exclusive, non-transferable right during the term specified at clause 13, to receive and use that Supplier Service, for not more than the number of Monitored Users specified in the Order.
2.2	It may be that provision of the Supplier Services requires access to all or part of the Supplier Software, in which case the appropriate Service Description or Order will indicate which parts of the Supplier Software are applicable. If the Supplier Service includes access to all or part of the Supplier Software then, in consideration for payment by the Customer of the Fees associated with the Supplier Service, and subject to these Terms, the Supplier grants a non-exclusive, non-transferable, term licence to access and use those parts of the Supplier Software as described in the Service Description (the Software Licence). 
2.3	The Supplier shall deliver the Supplier Software to the Customer in one or more of the following ways (as appropriate to the Supplier Service and at its sole discretion):
2.3.1	by making the Supplier Software available for remote access by Authorised Users via web browser or other mechanism across a communications network from Supplier systems in public cloud;
2.3.2	by providing one or more Appliances to the Customer on which the software has been pre-installed by the Supplier;
2.3.3	by allowing an Appliance installed at the Customer premises to perform an electronic download of the Supplier Software across a communications network;
2.3.4	by providing physical media on which the Supplier Software has been installed; or
2.3.5	by making the Supplier Software available for an Authorised User to download perform an electronic download.
2.4	The Customer does not have any right to receive a copy of the Supplier Software either in source or object code form either during or after the provision of the Supplier Services; and does not receive any title rights or ownership in or to the Supplier Software or the Documentation. 
2.5	The Supplier Software is not bespoke to the Customer and has not been developed to meet the specific and individual needs of the Customer, and as such the Customer must ensure that the Supplier Software meets its requirements.  By accepting these Terms and using the Supplier Software and/or Supplier Services, the Customer agrees that it has made sufficient enquiries regarding the Supplier, the Supplier Software and the Supplier Services and is content with same.
2.6	The Supplier shall not be responsible for the provision of any hardware, computer equipment, infrastructure, software, remote links, network connections or equipment, or any other facilities or additional services required to access the Supplier Software or Supplier Services, beyond that explicitly described in the appropriate Service Description and the Order.  The Supplier furthermore shall not and can not be responsible for the procurement, refinement, and suitability of the Customer’s infrastructure, hardware, computer equipment, remote links, network connections or equipment, or any other facilities or additional services – all of which remains solely a matter for the Customer at all times.
2.7	The Customer agrees that additional services provided beyond those specified in the Service Description or the Order (Additional Services) shall be charged separately at the appropriate rate as stated in the Service Description or if not there specified, at the Supplier’s standard rates for such services. Such Additional Services may be ordered by the Customer in accordance with clause 12.
2.8	The Customer may only use a Supplier Service, the Supplier Software or Appliances for its internal business purposes and the same may not be re-sold.
2.9	Where all or part of the Supplier Services are provided on a day rate, the following terms shall apply:
2.9.1	Fees shall be as specified within the Service Description and the Order.
2.9.2	The normal working day shall be, unless agreed to the contrary, 8 hours of work per day excluding lunch normally to be worked between the hours of 8:00am and 6:00pm on Business Days. 
2.9.3	Additional hours over 8 per day (excluding lunch) will be worked only by prior agreement with the Customer and will be charged pro-rata at the day rate specified in clause 2.9.1. Additional hours will include travel time from the Supplier’s office to the Customer Premises.
2.9.4	Work outside the normal working hours specified in clause 2.9 will be worked only by prior agreement with the Client and will be charged as specified in these Terms. 
2.9.5	The Supplier shall only be paid in respect of time worked and shall not be paid with respect to statutory and annual holidays, sickness or other temporary absence occurring during the course of the Supplier Services. Part-days worked shall be paid pro-rata to the daily rate.
2.9.6	The Supplier reserves the right to substitute any employee, subcontractor or agent at any time with another individual having in the Supplier’s opinion similar skills or experience. 
2.10	Time shall not be of the essence as to the performance of the Supplier’s obligations (unless agreed otherwise in writing).
2.11	All ownership, licence, intellectual property and rights and interests in the Supplier Services, the Supplier Software, the Appliances and the Documentation remains solely with the Supplier.
2.12	The Supplier reserves the right to change or update the Supplier Services or Supplier Software at any time and will endeavour to ensure that this does not materially affect the overall service. The Supplier will provide the Customer reasonable notice of any update which it regards as material, unless such an update is necessitated by urgent security or other considerations, in which case the update and any associated notice will be immediate.
2.13	The Supplier shall use commercially reasonable endeavours to provide the Supplier Services in compliance with the service levels and support services set out in Annex 1. The Supplier reserves the right to amend the service levels and support services at any time. 
2.14	The Supplier Services shall be deemed to be accepted by the Customer when the acceptance criteria laid out in the Order have been met. 
2.15	The Customer shall own all rights, title and interest in the Customer Data and shall have sole responsibility for the legality, reliability, accuracy and quality of the Customer Data.
2.16	The Supplier shall follow its data backup and retention policies as set out in the Service Description or Documentation and amended from time to time, and in the event of loss or corruption of Customer Data the Customer’s sole and exclusive remedy shall be for the Supplier to use commercially reasonable efforts to recover the Customer Data from such backups. 
2.17	The Supplier shall not be responsible for any loss or corruption to Customer Data caused by any third party.
2.18	Subject to reasonable notice, the Supplier will provide information that the Customer reasonably requests in order to meet its audit requirements. The Supplier reserves the right to make a charge if the Customer requires the Supplier to hold and make available information that is not covered by normal accounting practices and would not normally be made available by a commercial organisation.
3.	Supplier Obligations
3.1	The Supplier shall use commercially reasonable endeavours to ensure that the Supplier Services will be performed:
3.1.1	with all due skill, care, diligence;
3.1.2	so as to conform with the requirements set out in these Terms in accordance with Good Industry Practice;
3.1.3	so as to conform with all statutory requirements and applicable regulations relating to the Supplier Services.
3.2	The conditions contained in clause 3.1 shall only apply if:
3.2.1	the Customer has carried all of out its obligations in respect of the Supplier Services in accordance with these Terms; and
3.2.2	the Customer provides the Supplier with a documented and replicable example of such wrong doing together with all relevant operating environmental information.
3.3	Further, the responsibilities in clause 3.1 will not apply if the wrong doing is due to causes other than ordinary use including without limitation accident, hazard, misuse or failure or fluctuation of electric power, air conditioning, humidity control or other environmental conditions.
3.4	The Supplier shall not be liable for any failure to provide, or delay in providing, the Supplier Services, arising out of or in connection with:
3.4.1	any act or omission of the Customer or its employees, agents or subcontractors which affects the Supplier’s ability to provide the Supplier Services;
3.4.2	any breach by the Customer of its obligations under these Terms or the Order;
3.4.3	any inaccurate or incomplete data or information provided by the Customer, or an Authorised User or a Monitored User as the case may be;
3.4.4	any failure by any third party to fulfil its obligations to the Customer;
3.4.5	any failure or inadequate performance and/or response of the Supplier Service resulting from the acts or omissions of any third party including but not limited to (i) loss of connectivity to the Internet, and (ii) connectivity, network, telecommunications or bandwidth failures, outages, restrictions and/or inadequate performance or response;
3.4.6	any use by the Customer of non-manufacturer recommended media and supplies, or any neglect or improper use, or electrical disturbances, or any unauthorised use, of the Supplier Services or modification by persons other than the Supplier’s employees or authorised agents or subcontractors; and
3.4.7	any incompatibility between the Supplier Services, Supplier Software or Appliances and any other system, network, application, program, power supply, hardware or software not specified as compatible in the Service Description.
4.	Customer Obligations
4.1	The Customer is responsible for ensuring that:
4.1.1	it provides, at its expense, any Infrastructure beyond that explicitly described in the appropriate Service Description or the Order;
4.1.2	the Infrastructure it uses to access the Supplier Services is compatible with the specific Supplier Service as advised by the Supplier;
4.1.3	it takes adequate precautions within its own Infrastructure to prevent the spread of malicious software;
4.1.4	those who are granted access rights to the Supplier Services or Infrastructure comply with the provisions of any applicable legislation including Data Protection Legislation;
4.1.5	it and those it permits to use the Supplier Services do not use the Supplier Services in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
4.1.6	it complies with the licence terms of any third party software provided by the Supplier in the delivery of the Supplier Services;
4.1.7	it complies with all applicable statutory and other legal requirements.
4.2	The Customer shall:
4.2.1	where specified in the Service Description or Order Form, assist the Supplier with the receipt, installation, configuration, maintenance and support of such Supplier Software or Appliances as required in the provision of the Supplier Services;
4.2.2	provide a compatible operating environment for any part of the Supplier Software or Appliances which must be installed at the Customer Premises, including but not limited to appropriate power, security and cooling, and as more particularly described in the Service Description; 
4.2.3	use the Supplier Services only as agreed in the Order and these Terms; 
4.2.4	not permit the Supplier Services to be used for more than the maximum number of Monitored Users specified in the Order, and if such maximum number is exceeded it shall pay additional Fees for the additional Monitored Users; 
4.2.5	not permit any User Account to be used by more than one person;
4.2.6	procure that each Authorised User shall keep a secure password and any other security mechanisms required to control access to their User Account;
4.2.7	be responsible for the actions of the Authorised Users in accessing the Supplier Services, ensuring this is done in accordance with these Terms;
4.2.8	and shall upon request validate that the list of Authorised Users provided by the Supplier is complete and correct;
4.2.9	co-operate with the Supplier in all matters relating to the provision of the Supplier Services (including the provision of access to all sites, terminals, servers, locations, people and information-sets reasonably requested by the Supplier);
4.2.10	when notified by the Supplier implement promptly any fixes or upgrades of any system software necessary for the successful operation of the Supplier Software;
4.2.11	appoint an Authorised Representative in respect of the Supplier Services, such person to be identified in the Order Form. That person shall have authority to contractually bind the Customer on all matters relating to the Supplier Services;
4.2.12	provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's Premises, Infrastructure, Customer Data and other facilities as reasonably required by the Supplier including any such access as is specified in the Order;
4.2.13	provide to the Supplier in a timely manner all information sets (whether owned by the Customer or a third party) reasonably requested by the Supplier in connection with the Supplier Services and ensure that they are accurate and complete;
4.2.14	ensure that all the Customer's equipment is in good working order and suitable for the purposes for which it is used in relation to the Supplier Services and conforms to all relevant United Kingdom standards or requirements;
4.2.15	obtain and maintain all necessary licences and consents and comply with all relevant legislation as required for provision of the Supplier Services; and
4.2.16	comply with any additional responsibilities of the Customer as set out in the relevant Order.
4.3	The Customer must not:
4.3.1	exceed any set usage limits or restrictions set out in the applicable Service Description or Order, and the Customer acknowledges that the Supplier Service may include technical means of monitoring or enforcing such limits which may result in usage or functionality restrictions within the Service if such limits or restrictions are exceeded;
4.3.2	sell, rent, sub-licence or lease the Supplier Services in any way, or transfer to any other person any of its rights hereunder;
4.3.3	create any derivative works based upon the Supplier Software or the Supplier Services; or
4.3.4	adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Supplier Software, nor take any other steps to discover Confidential Information or trade secrets in the Supplier Software or the Supplier Services, nor facilitate or suffer a third party to do so.
4.4	The Customer shall not access, store, reproduce, distribute, transmit or knowingly receive any Malicious Software or any material during the course of its use of the Supplier Services that:
4.4.1	is unlawful, harmful, threatening, menacing, abusive, obscene, infringing, harassing or racially or ethnically offensive;
4.4.2	facilitates illegal activity;
4.4.3	is indecent or depicts sexually explicit images;
4.4.4	promotes unlawful violence;
4.4.5	is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
4.4.6	is defamatory or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability, to discontinue the Service or the Customer’s access to the Supplier Software or to remove material that breaches the provisions of this clause 4.4.
5.	Payment Terms 
5.1	In consideration of the Supplier Services the Customer shall pay the Supplier according to the provisions of these Terms and the Order.  
5.2	Unless otherwise specified, the Supplier shall submit invoices on a monthly basis for Supplier Services furnished during the preceding month, and each invoice shall include supporting detail of all charges.
5.3	The Fees specified and all other sums payable hereunder are in GB Pounds Sterling and are exclusive of Value Added Tax (VAT) and all taxes and duties which may be levied or based upon the Price or such sums or upon the Supplier Services or any part thereof. VAT and all such taxes or duties (with the exception of any tax levied or based upon the income of the Supplier) shall be added to the Supplier’s invoices to be paid by the Customer at the appropriate rate (as applicable). 
5.4	All invoices shall be paid by Customer within 30 days of the date of the Supplier’s invoice. All amounts payable under these Terms shall be paid in full without set-off, deduction or other withholding of any amount which may be due to the Customer.
5.5	Unless otherwise specified, the Customer shall reimburse all reasonable expenses properly and necessarily incurred by the Supplier while carrying out the Supplier Services, subject to production of receipts or other appropriate evidence of payment. 
5.6	If the Customer fails to pay undisputed invoices, the Supplier shall, unless otherwise specified in the Order, be entitled to suspend the relevant Supplier Service (and disable or disconnect Authorised Users or Monitored Users from elements of the Supplier Software and Supplier Services as it thinks fit in its full discretion). Suspension will continue until full payment of those invoices has been made, at which point, where relevant to the Supplier Service, a re-connection charge equivalent to one-half of a monthly charge for the relevant Supplier Service will be applied.
5.7	Invoices that remain outstanding after 60 days will be subject to interest on overdue amounts on a daily basis from the original due date at the rate of 4% per annum above the base lending rate of Danske Bank (UK).
5.8	No refund will be given on Fees paid in advance in the event of termination. 
5.9	The Supplier shall be entitled to increase the Fees in line with wage inflation or the consumer price index no more than once per annum.
6.	Limitation of Liability.
6.1	Nothing in these Terms shall limit the liability of the Supplier to the Customer for death or personal injury resulting from its own negligence or that of its employees, agents, Authorised Representatives or sub-contractors or for fraudulent misrepresentation or for any liability which cannot be excluded or limited by law.
6.2	In no event shall the Supplier be liable for any negligence or tortious losses nor for any of the following losses which the Customer or any other third party may suffer  which may arise by reason of any breach of the express terms of these Terms or (to the extent that they have not been excluded by clause 6.3) any implied warranty, condition or other term, any representation or any duty of any kind imposed on the Supplier by operation of law (whether such losses or damage were foreseen, foreseeable, known or otherwise):-
6.2.1	any loss of revenue;
6.2.2	actual or anticipated profits;
6.2.3	loss of business;
6.2.4	damage to reputation;
6.2.5	loss of or damage to goodwill;
6.2.6	loss of opportunity;
6.2.7	loss of any order or contract; 
6.2.8	loss of anticipated savings; 
6.2.9	loss of, damage to or corruption of data; and/or
6.2.10	any indirect or consequential loss or damage of any kind.
6.3	Each limitation provision in this clause 6 is to be construed as a separate limitation applying and surviving even if for any reason or other of the said provisions is held inapplicable or unreasonable in any circumstances and shall remain in force not withstanding any termination of the Terms. 
6.4	Subject to any specific financial limits stated in the Order, the Supplier’s total liability to the Customer in respect of all losses arising under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the amounts paid or payable by the Customer for Services provided during the 12 months preceding the date on which the claim arose.
6.5	The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from these Terms.
6.6	The Customer is liable for all loss or damage arising from the unauthorised access or use of Customer's own networks and systems. 
6.7	This clause 6 shall survive termination of the Terms.
7.	Warranties
7.1	To the extent permitted by applicable law, and unless otherwise specified in the Order, the Supplier disclaims all warranties and conditions expressed or implied, statutory or otherwise, as to the Supplier Services including but not limited to implied warranties relating to quality, performance, fitness for a particular purpose, durability, merchantability or ability to achieve a particular result, and the software is provided “as is” and “as available” with all defects and errors if any. This does not exclude any liability for fraudulent misrepresentation.
7.2	The Supplier does not warrant that the operation of the Supplier Software or the Supplier Services will be uninterrupted or error-free or that these will comply with any Heightened Cybersecurity Requirements and the Parties agree that such interruptions or errors in the Supplier Software will not by themselves constitute a breach of these Terms.
7.3	The Customer must bring any claim against the Supplier for breach of these Terms within one month from the date on which the Customer first became aware of the alleged breach, after which time any claims shall lapse.
7.4	Customer shall give the Supplier the reasonable opportunity to remedy any breach of these warranties without charge to Customer and the warranties contained in clause 7.1 shall be the extent of the Supplier’s liability in respect of the Supplier Services.
7.5	The warranties contained in clause 7.1 shall only apply if:
7.5.1	the Customer has carried all of out its obligations in respect of the Supplier Services in accordance with these Terms; and
7.5.2	the Customer provides the Supplier with a documented and replicable example of such breach together with all relevant operating environmental information.
7.6	Further, the warranties in clause 7.1 will not apply if the breach of warranty is due to:
7.6.1	use of the Services other than in accordance with clause 2;
7.6.2	use of the Supplier Software that is not in accordance with the Documentation or the Service Description; 
7.6.3	 misuse, failure or inadequacy of any Infrastructure provided by the Customer;
7.6.4	deliberate act by any person granted access by the Customer.
8.	Rights in Developed Materials 
8.1	Each party will retain all its rights in and title to its Pre-Existing Intellectual Property Rights and nothing in these Terms assigns or transfers the Pre-Existing Intellectual Property Rights of one party to the other.  Neither party may assert or bring any claim for ownership of any or all of the other party’s Pre-Existing Intellectual Property Rights. 
8.2	To the extent that the Supplier needs to use any of the Customer’s Pre-Existing Intellectual Property Rights for the purposes of performing the Supplier Services, the Customer grants to the Supplier for the term of these Terms, a royalty free, non-exclusive, non-transferable licence to use such Pre-Existing Intellectual Property Rights solely for the purposes of providing the Supplier Services.
8.3	All Intellectual Property Rights in Developed Materials which are produced, invented or discovered by the Supplier during the performance of the Supplier Services, including Developed Materials that constitute material extensions, modifications or enhancements to the Supplier Software, shall vest in the Supplier immediately upon creation and to the extent required, the Customer hereby assigns (and shall procure that each relevant employee, agent or Authorised Representative shall assign) all of its right, title and interest in such Intellectual Property Rights (including future Intellectual Property Rights by way of present assignment) upon their creation to the Supplier. 
9.	Confidentiality 
9.1	The Parties undertake to treat as confidential and keep secret all Confidential Information conveyed from one Party (the Disclosing Party) to the other Party (the Receiving Party) or by a third party on behalf of the Disclosing Party in the provision of the Supplier Services, and the Receiving Party shall not without the prior written consent of the Disclosing Party divulge any part of the Confidential Information to any third party except:
9.1.1	the Receiving Party’s own employees or any Authorised Representatives engaged by them and then only to those employees or Authorised Representatives who need to know the same; and/or
9.1.2	as is required by law, by court or governmental order to be disclosed provided that, to the extent permitted by law, prior to any disclosure, the Receiving Party notifies the Disclosing Party and assists, at the Disclosing Party’s expense, in opposing any such disclosure.
9.2	The Parties undertake to ensure that the persons and bodies mentioned in clauses 9.1 and any other recipient of Confidential Information are made aware prior to the disclosure of any part of the Confidential Information that the same is confidential and ensure that they comply with the confidentiality and non-disclosure provisions contained in this clause 8.
9.3	The Receiving Party shall indemnify the Disclosing Party (up to the limits of any relevant and suitable business insurance policy in place) against any loss or damage which the Disclosing Party may sustain or incur as a result of the Receiving Party failing to comply with such undertaking.
9.4	The Receiving Party shall promptly notify the Disclosing Party if it becomes aware of any breach of confidence by any person to whom the Receiving Party divulges all or any part of the Confidential Information and shall give the Disclosing Party all reasonable assistance in connection with any proceedings which they may institute against such person for breach of confidence.
9.5	The provisions of clause 8 shall not apply to information which:
9.5.1	is or comes into the public domain through no fault of the Receiving Party, its officers, employees, agents or contractors;
9.5.2	is lawfully received from a third party free of any obligation of confidence at the time of its disclosure;
9.5.3	is independently developed by the Receiving Party, its officers, employees, agents or contractors.
10.	Data Protection.
10.1	In providing and receiving the Supplier Services, the Parties shall during the term stated in clause 13 comply with the Data Protection Legislation including, without limitation, the data protection principles set out therein in the performance of their obligations under these Terms, shall ensure that their respective employees, agents and sub-contractors do likewise and shall obtain and maintain the necessary notifications and consent required by the Data Protection Legislation.
10.2	The parties agree that, when processing Protected Data upon the Processing Instructions of the Customer, the Customer shall be the Data Controller and the Supplier shall be the Data Processor.  The parties also accept that in certain circumstances it will be possible for the Supplier to be a Data Controller (such as in connection with any Framework Agreement from time to time) in which case separate controls and arrangements for the Protected Data shall apply.
10.3	The Supplier shall process Protected Data in compliance with the Data Protection Legislation and these Terms..
10.4	The Customer shall comply with:
10.4.1	all Data Protection Legislation in connection with its controlling or processing of Protected Data as applicable, the Supplier Services and the exercise and performance of its respective rights and obligations under these Terms, including maintaining all relevant regulatory registrations and notifications as required under Data Protection Legislation; and
10.4.2	these Terms.
10.5	The Customer warrants, represents and undertakes, that:
10.5.1	it shall ensure that for as long as these Terms apply there exists a suitable lawful basis which justifies the processing of all Protected Data under Article 6 of the GDPR which may include consent as the relevant lawful basis.  Where consent is the appropriate lawful basis as above, all relevant third parties shall have been informed of, and have given and maintained their consent to, such use, processing, and transfer as required by all applicable data protection legislation and, without limitation, the Customer shall ensure that all Authorised Users and Monitored Users have been informed of, and have given and maintained their consent to permit access, monitoring, use and disclosure of all User Content and Monitored User Data by the Customer or the Supplier in accordance with these Terms.
10.5.2	it is entitled to transfer the relevant Personal Data to the Supplier so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with these Terms on the Customer's behalf;
10.5.3	all instructions given by it to the Supplier in respect of Personal Data shall at all times be in accordance with Data Protection Legislation.
10.6	The Customer acknowledges and agrees that the Personal Data may be transferred or stored outside the United Kingdom or the country where the Customer, the Authorised Users or Monitored Users are located in order to carry out the Supplier Services and the Supplier’s other obligations under these Terms.
10.7	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.
10.8	Insofar as the Supplier processes Protected Data on behalf of the Customer, the Supplier:
10.8.1	unless required to do otherwise by applicable law, shall (and shall take steps to ensure each person acting under its authority shall) process the Protected Data only on and in accordance with the Customer’s Processing Instructions as set out in this clause 10  as updated from time to time in accordance with the Change Control Process at Annex 2;
10.8.2	if applicable law requires it to process Protected Data other than in accordance with the Processing Instructions, shall notify the Customer of any such requirement before processing the Protected Data (unless applicable law prohibits such information on important grounds of public interest); and
10.8.3	shall inform the Customer if it becomes aware of a Processing Instruction that, in the Supplier’s opinion, infringes Data Protection Legislation, provided that:
10.8.3.1	this shall be without prejudice to clause 10.3;
10.8.3.2	to the maximum extent permitted by mandatory law, the Supplier shall have no liability howsoever arising (whether in contract, tort (including negligence) or otherwise) for any losses, costs, expenses or liabilities (including any Data Protection Losses) arising from or in connection with any processing in accordance with the Customer's Processing Instructions following the Customer's receipt of that information.
11.	Use of Data
11.1	The Customer agrees that the Supplier may process the Customer Data as necessary to provide the Supplier Services, administer its business relationship with the Customer (including but not limited to for billing, customer support, and product-related communications), and as otherwise set forth in the Privacy Policy at http://www.ampliphae.com/privacypolicy.
11.2	The Customer grants the Supplier the right to extract Customer Data in an anonymised form for the following purposes only:
11.2.1	identifying market trends; or
11.2.2	identifying user patterns; or
11.2.3	identifying potential improvements to the Services or the Software; or
11.2.4	for the provision of or improvements to the Supplier Services or the Supplier Software
11.3	The right granted by the Customer to the Supplier pursuant to clause 11.1 is subject to the Parties data protection obligations under clause 10  and the Supplier warrants that the procedure adopted to anonymise the Customer Data so extracted is in line with Good Industry Practice.
12.	Change Control
12.1	All changes or additions to the Supplier Services will be handled in accordance with the change control process detailed in Annex 2 to these Terms. 
13.	Term and Termination.
13.1	These Terms shall commence on the date stated in the Order and shall apply for the minimum period stated on the Order, or if not therein specified, shall be for a period of two years (the Term). By mutual agreement in writing these Terms can be extended beyond the Term. 
13.2	Either Party may terminate these Terms giving to the other not less than 90 days’ notice in writing.  If the Customer wishes to terminate these Terms on less than 90 days’ notice or before the end of the Term agreed pursuant to clause 13.1, the Supplier may agree to such “early” termination in return for a fee to be paid on or before the date of termination in the amount equal to ¼ of the aggregate fees paid by the Customer in the past 12 months or the sum of £15,000 – whichever is higher. 
13.3	Either Party may terminate the whole of these Terms forthwith on giving notice in writing to the other Party if:
13.3.1	the other Party commits any material breach of these Terms and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the non-defaulting Party so to do, to remedy the breach (such request to contain a warning of the non-defaulting Party’s intention to terminate). For the avoidance of doubt, non-payment of the Fees shall be deemed a material breach;
13.3.2	the other Party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other Party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business.
13.4	Any termination of these Terms (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the 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. 
13.5	On termination of these Terms (however occasioned):
13.5.1	all Authorised Users shall no longer be permitted access to the Supplier Service and Supplier Software or Documentation;
13.5.2	within 90 days the Supplier shall delete all Customer Data held in the Supplier systems, subject to the requirements of clause 9 and 10;
13.5.3	the Customer shall procure that any Supplier Software installed on Customer equipment be deleted; and
13.5.4	the Customer shall upon request return any Appliances which have been rented from the Supplier, and if such Appliances are not returned within 30 days of termination, the Supplier shall be entitled to charge Fees for replacement of Appliance hardware at current market prices, or as otherwise stated in the Order.
14.	Non Solicitation 
14.1	During the Term and for a period of 12 months following, except as otherwise expressly agreed between the Parties in writing, neither Party may directly, by or through itself, its associates, its agents or otherwise, whether for its own benefit or for the benefit of any other person:
14.1.1	solicit or induce, or endeavour to solicit or induce any employee of the other Party with a view to engaging such employee as an employee, director, subcontractor or independent contractor; or
14.1.2	employ or engage or offer to employ or engage an employee of the other Party without the written consent of the other Party save that either Party may employ or engage any employee of the other Party who has responded directly to a bona fide recruitment drive, either through an agency or advertisement in the press and not directly or indirectly as a result of any solicitation or inducement by the other Party.
14.2	If a Party breaches the above clause, it will pay to the other Party as compensation an amount equal to 12 months’ salary of the employee, and the Parties acknowledge that this represents a genuine pre-estimate of the loss likely to be suffered through breach of this clause.
14.3	If the periods above are held by a court or tribunal of competent jurisdiction to be void or unenforceable, such provisions will apply with such modification to the relevant wording and/or reduction in the length of the period as required to make them valid and enforceable.
15.	Assignment and other dealings
15.1	The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms without the prior written consent of the Supplier.
15.2	The Supplier 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 these Terms.
16.	Variation
16.1	No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their Authorised Representatives).
17.	Waiver
17.1	A waiver of any right or remedy under these Terms or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
17.2	A failure or delay by a Party to exercise any right or remedy provided under these Terms or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Terms or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.3	A Party that waives a right or remedy provided under these Terms or by law in relation to one Party, or takes or fails to take any action against that Party, does not affect its rights in relation to any other Party.
18.	Rights and remedies
18.1	The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
19.	Severance
19.1	If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms.
19.2	If provision or part-provision of these Terms is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.	Entire agreement
20.1	These Terms together with the associated Order, the Service Descriptions (and the Framework Agreement if applicable) constitute the entire agreement between the Parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 
20.2	The Customer acknowledges that in entering into these Terms it has not relied upon any representation other than set out in the documents listed in clause 20.1.
20.3	Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the documents specified in clause 20.1. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
21.	No partnership or agency
21.1	Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2	Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22.	Third party rights
22.1	Unless it expressly states otherwise, these Terms does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
23.	Notices
23.1	Any notice given to a Party under or in connection with these Terms shall be in writing and shall be delivered by email to a known, valid and working email address, or by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case). 
23.2	Any notice shall be deemed to have been received:
23.2.1	if sent by email to the company email address info@ampliphae.com, approximately one hour after the email is sent and time-stamped as sent in the sender’s sent items folder;
23.2.2	if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or
23.2.3	if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
23.3	This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23.4	A notice given under these Terms is not valid if sent fax.
24.	Counterparts
24.1	These Terms may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24.2	Transmission of an executed counterpart of these Terms (but for the avoidance of doubt not just a signature page) by (a) fax or (b) email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed counterpart of these Terms. If either method of delivery is adopted, without prejudice to the validity of the agreement thus made, each party shall provide the other with the original of such counterpart as soon as reasonably possible thereafter.
25.	Dispute Resolution 
25.1	If a dispute arises out of or in connection with these Terms, the Service Description or Order, or related to the performance, validity or enforceability of same (a Dispute) then except as expressly provided in these Terms, the Parties shall follow the procedure set out in this clause:
25.1.1	either Party shall give to the other written notice of the Dispute, setting out its nature and full particulars (the Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Parties shall attempt in good faith to resolve the Dispute;
25.1.2	if the Parties are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Chief Executive Officer (CEO) of the Customer or other Authorised Representative of the Customer as stated in the Order and the CEO of the Supplier who shall attempt in good faith to resolve it; and
25.1.3	if the CEO or other Authorised Representative of the Customer and the CEO of the Supplier are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
25.2	The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under clause 25, which clause shall apply at all times.
25.3	If the Dispute is not resolved within 30 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 30 days, or the mediation terminates before the expiration of the said period of 30 days, the Dispute shall be finally resolved by the courts of Northern Ireland in accordance with clause 27. 
26.	Governing law
26.1	These Terms and any Dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
27.	Jurisdiction
27.1	Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.
Annex 1: Service Levels and Support Services
Service Availability
The Supplier Software (accessed remotely from the public cloud) will be generally available for access by authorised users at any time. Any planned outages will be notified to users at least 7 days in advance via the Supplier web site or via email notifications. Any unplanned outages will be notified, where possible, to customers via the Supplier web site or via email notifications.
The Supplier’s Appliances (for local data collection) will be supported by the Supplier.  Support for Supplier Software and Appliances will be via the support services listed below. In the event that an incident with an Appliance cannot be resolved remotely by the Supplier, then in the Supplier’s sole discretion either an on-site repair will be offered or a replacement Appliance will be shipped to the Customer for their local installation. 
Support will be offered only for the current and one prior version of the Supplier Software, and in the event that an incident is reported with an older version the Customer will be required to upgrade to the current version in order to continue to receive support for that part of the Service (unless otherwise agreed in writing). 
Note that in order for the Supplier Software, Appliances and Supplier Services to operate correctly and deliver customer value, there are dependencies upon other components and systems, some of which must be provided by the Customer. The Supplier will not be responsible for service failures caused by lack or failure of services for which the Customer or a 3rd party is responsible, or any component or system not supplied by the Supplier. This includes (but is not limited to) provision of computing platforms, network access and web browsers that are required for Customer users to access the Supplier Software. Similarly if the Supplier personnel require access to the Customer Premises and/or systems in order to provide or support any aspect of the Supplier Services, this must be granted promptly in order to ensure continued service. 
Access to support services
The Supplier will provide support to customers with a valid current subscription to the Supplier Services via our web site at the following web address:
https://www.ampliphae.com/support 
This will provide access to a range of support services for example:
-	A view of the Supplier service status
-	A mechanism to raise and manage incidents
-	Access to a knowledgebase of information that can be used by customers to help resolve issues independently. 
-	Access to a software repository.
These services will be used to maintain communications with the customer whilst incidents remains open and under investigation. 


Incident Prioritisation
Ampliphae shall prioritise incidents raised via the support system according to the incident prioritisation shown below: 
Incident Priority	First Response	Resolution	Examples
Critical	8 hours	2 days	Significant impact to the Customer’s business, affecting all or a majority of employees.
Urgent	8 hours	3 days	Total loss of access to the online portal for all users; total loss of data collection across multiple probes.
High	12 hours	5 days	Disruption to major functionality of the system, preventing the Customer from carrying out critical business functions
Medium	2 days	15 days	Problems/disruption to a specific functionality of the system, impeding the Customer ability to use the service; performance issues e.g. with data processing operations
Low	3 days	To be Agreed with Customer	Minor functionality issues, UI/display issues e.g. browser compatibility issues

Response and resolution times listed above are based upon business hours (Monday-Friday 9am-6pm, excluding UK public holidays). 
First Response and Resolution targets listed above are subject to the Supplier’s reasonable commercial efforts and do not constitute service level guarantees and failure to achieve these targets does not constitute a breach of contract. These targets do not apply in circumstances beyond the Supplier’s reasonable control such as flood, pandemic, civil unrest and so on, and also do not apply if the Customer is in breach of its contract with the Supplier for any reason. 
Annex 2: Change Control Process
1.	All changes or additions to the Supplier Services will be handled in accordance with the change control process detailed below: 
2.	If the Customer desires to make changes or additions to the Supplier Services, the Customer shall make a request in writing to the Supplier (the Change Request) which lists the requirements the Customer wishes to be met by the Supplier. 
3.	The Supplier shall assess Change Requests.
4.	The Supplier shall provide a written response (the Impact Assessment) which is returned to the Customer.
5.	The Impact Assessment will contain the following:
5.1	Clarification of Customer requirements.
5.2	A description of the Additional Services the Supplier will provide to meet the requirements.
5.3	A plan for delivery of the Additional Services.
5.4	A price for delivery of the Additional Services.
6.	Where the Customer agrees with the terms of the Impact Assessment and desires any proposed Additional Services to be provided the Customer shall make a request in writing (the Change Approval) which must include a completed Order Form for the Additional Services. 
7.	The Supplier shall be entitled to charge for its reasonable costs in assessing Change Requests whether or not they are accepted.
8.	If required by the Supplier, the Parties shall meet to discuss the change request.
9.	Any changes to the Supplier Services or Supplier Software shall be carried out at the Supplier’s sole discretion. 
10.	Where a Change Request is accepted in whole or in part by the Supplier, the agreed changes will be carried out within a timescale agreed between the Customer and the Supplier, and unless otherwise agreed shall be charged as Additional Services.