Bytes’ End User Licence Agreement 1 Terms and conditions 1.1 Acceptance of terms and conditions: (a) The Customer accepts the terms and conditions in effect at the time of supply of the SaaS. (b) The Supplier may update these terms and conditions at any time on one month’s written notice to the Customer except that where a Fixed Term applies the updated terms and conditions will not apply for the remainder of the current Fixed Term but will apply for the renewal of that Fixed Term (if any) and any ongoing use beyond the end of the current Fixed Term (as applicable). (c) Without limiting clause 1.1(b), the Customer’s continued use of the SaaS confirms the Customer’s acceptance to be bound by the latest terms and conditions. (d) Any additional or different terms that the Customer may stipulate or state in any communication with the Supplier will not be binding on the Supplier or included in the Agreement unless expressly agreed in writing by the Supplier. 1.2 The ‘Agreement’ comprises the Customer Information, Selected Options, Relevant Pricing, these terms and conditions (as updated from time to time under clause 1.1(b) above) and the Support Schedule. 1.3 These terms and conditions apply to customers that purchase SaaS (or on whose behalf SaaS is purchased) and if there is a trial period available, these terms and conditions also apply to that trial period. 1.4 The SaaS is available from the Supplier directly and from Authorized Partners and is available at various Purchase Locations. Regardless of where the purchase is made, these terms and conditions apply as between the Supplier and the Customer. 1.5 All capitalized terms used in these terms and conditions have the meanings given to them in the definition section in clause 19. 1.6 Where someone other than the Customer purchases SaaS on behalf of the Customer that person is deemed to have authority to accept these terms and conditions for the Customer. 2 GDPR and Data Protection 2.1 Where the GDPR applies, the GDPR & Data Protection Schedule attached to these terms and conditions applies. Where the GDPR does not apply, the GDPR & Data Protection Schedule may not be attached or if it is attached in any event does not apply. 3 Intellectual Property 3.1 All Intellectual Property in: (a) the SaaS; and (b) the software, processes, methodology and know-how used by the Supplier in its performance of the Agreement; is the property of the Supplier (or its licensors) and nothing in the Agreement operates to change that ownership. 3.2 The Customer must not, nor may the Customer permit any other person to do any of the following, or attempt to do so: (a) copy, alter, modify, reverse assemble, reverse compile, reverse engineer or enhance the SaaS Systems; or (b) permit or enable users other than Permitted Users to access or use the SaaS; or (c) provide the SaaS to any users through operation of a bureau or like service; or (d) resell, rent, lease, transfer, sublicense or otherwise transfer rights to use the SaaS; or (e) use the SaaS in any way that could damage or interfere with the SaaS Systems in any way; (f) use the SaaS otherwise than in the manner in which the SaaS is designed to be used; (g) use the SaaS in any way that could interrupt, damage or otherwise interfere with use of the SaaS by any other customers; (h) do any act which would or might invalidate or be inconsistent with the Supplier’s Intellectual Property rights. 3.3 The Customer must notify the Supplier of any actual, threatened or suspected infringement of any Intellectual Property right and of any claim by any third party that any use of the SaaS infringes any rights of any other person, as soon as that infringement or claim comes to the Customer’s notice. The Customer must (at the Supplier’s expense) do all such things as may reasonably be required by the Supplier to assist the Supplier in pursuing or defending any proceedings in relation to any such infringement or claim. 3.4 The Customer indemnifies the Supplier against any loss, costs, expenses, demands or liability whether direct, indirect or otherwise, and whether arising in contract, tort (including negligence), equity or otherwise, arising out of a claim by a third party alleging infringement of that third party’s Intellectual Property rights if such claim arises from infringement, suspected infringement or alleged infringement due to: (a) use of the SaaS in a manner or for a purpose or in combination with any other SaaS or product not reasonably contemplated or authorized by the Supplier; or (b) a breach by the Customer of clause 8.2. 4 Confidential Information 4.1 The parties recognise and acknowledge the confidential nature of the Confidential Information. 4.2 Neither party may use or disclose any Confidential Information other than: (a) to its employees, directors or contractors to the extent necessary in the performance of the Agreement; or (b) with the express prior written consent of the other party; or (c) to its professional advisers. 5 Warranties 5.1 Each party warrants to the other that it has authority to enter into and perform and the ability to perform its obligations under the Agreement. 5.2 With the exception of the warranties given under clauses 10.1, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law. 5.3 Any warranties made to the Customer under the Agreement extend solely to the Customer. 6 Liability 6.1 This limitation does not apply to claims by the Customer for bodily injury or damage to real property or tangible personal property where the Supplier is legally liable for that injury or damage. 6.2 The Supplier’s liability under this Agreement is limited to direct loss only, to the amount paid by the Customer in the 12 month period preceding the event giving rise to the claim. 6.3 In no event is the Supplier liable for any indirect loss or for any loss of profits, lost savings, lost revenue, loss of data, business interruption, incidental or special damages, or for any consequential loss. 7 Force majeure 7.1 The Supplier may suspend its obligations to perform under the Agreement if it is unable to perform as a direct result of a Force Majeure Event. Any such suspension of performance must be limited to the period during which the Force Majeure Event continues. 7.2 Where the Supplier’s obligations have been suspended under clause 15.1 for a period of 90 days or more, the Customer may immediately terminate the Agreement by giving notice in writing to the Supplier. 8 General 8.1 Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties, superseding all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of the Agreement. 8.2 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a party will constitute a waiver by that party of that or any other right or remedy available to it. 8.3 Partial invalidity: If any provision of the Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law. 8.4 Independent contractor: The Supplier is an independent contractor to the Customer and is in all respects independent of the Customer. Nothing in the Agreement constitutes either party a partner, agent, employee or joint venture of the other. 8.5 Suspension: The Supplier may suspend performance of its obligations under the Agreement for so long as it is unable to perform for reasons outside of its control. 8.6 Assignment: The Customer is not permitted to assign its rights under the Agreement. 9 Notices 9.1 Notices from the Supplier to the Customer under the Agreement will be sent to the Customer at the Customer’s contact details specified in the Customer Information. The Customer may notify the Supplier of a change to the contact details specified in the Customer Information, on seven days’ notice in writing to the Supplier. Notices from the Customer to the Supplier under the Agreement must be sent to the Supplier at the Supplier’s relevant office, details included on the Supplier’s website. 9.2 Notices sent by email will be deemed received on sending, provided that the sender does not receive an automatic delivery failure notification. Notices sent by post will be deemed received: (a) on the third day following posting if sent and received locally (not internationally); and (b) on the tenth day following posting if posted internationally. 10 Governing law and jurisdiction: 10.1 The Agreement is governed by the laws of England and Wales. The parties hereby submit to the non-exclusive jurisdiction of the courts of England and Wales. 11 Definitions: In these terms and conditions: “Agreement” has the meaning given to that term in clause 1.2 above; “Authorized Partner” means a third party that has been authorized by the Supplier to sell the SaaS; “Claim” means a claim, submitted by the Customer to the Supplier in writing, that the Monthly Uptime Commitment has not been met (claims are subject to the Supplier determining whether or not an Exception Factor applied); “Confidential Information” means any proprietary information, know-how and data disclosed or made available by one party to the other party but does not include any information which: (a) is in the public domain without any breach of the Agreement; (b) on receipt by the other party is already known by that party; (c) is at any time after the date of receipt by the other party, received in good faith by that party from a third party; (d) required by law to be disclosed by the other party; “Customer” means the customer named in the Customer Information; “Customer Information” means the customer name, email address and any other contact information submitted by or on behalf of a customer: (a) to the Supplier or Authorized Partner in the course of agreeing to purchase (or agreeing to a Trial) of the SaaS; (b) at a Purchase Location in the course of agreeing to purchase (or agreeing to a Trial) the SaaS; “Customer’s Integrated Services and Products” means services or products (including third party services or products) which are integrated (in any way) by or for the Customer with the SaaS, regardless of who undertakes that integration work or how it is undertaken; “Data” means the Customer's data that is entered by the Customer and processed in the course of provision of the SaaS and includes where the context permits, the ‘Personal Data’ (as defined in the attached GDPR and Data Protection Schedule); “Exception Factors” means factors the existence of which mean the Supplier cannot ensure availability of the SaaS, as described in clause 3.3; “Fixed Term” (if any) means: (a) the fixed term for supply of the SaaS, agreed in writing between the Supplier or relevant Authorized Partner and the Customer; or (b) the fixed term selected by the Customer in the Selected Options; “Force Majeure Event” means any war, riot, third party strike, natural disaster or other circumstance of a similar nature that is outside of the control of the affected party; “GDPR” means EU General Data Protection Regulation 2016/679; “Hosting” means the Standard Hosting or if applicable, the Selected Hosting and is subject to the Monthly Uptime Commitment; “Intellectual Property” includes all copyright, trademarks, designs, patents, domain names, concepts, know-how, trade secrets, logos and all other similar property and rights whether registered or unregistered; “Monthly Uptime Commitment” (where applicable) means the monthly uptime commitment made by the Supplier for the SaaS, relevant to the Hosting, as notified in writing by the Supplier or Authorized Partner or by written notification at the Purchase Location, prior to purchase; “Permitted Users” means: (c) employees, directors or contractors of the Customer; and (d) where the Selected Options include options for selecting the number of permitted users, not more than the number of employees, directors or contractors selected; “Planned Maintenance” means maintenance on all or any part of the SaaS Systems and if applicable to the Agreement will be undertaken at times notified to the Customer in writing; “Purchase Location” means any internet site from which the SaaS is available for purchase; “Relevant Pricing” means the pricing for the SaaS that is notified in writing to the Customer by the Supplier or by the relevant Authorized Partner prior to the purchase by the Customer or made available at the Purchase Location, and: (a) includes Standard Hosting or Selected Hosting as applicable; (b) where Selected Options apply, means or includes (as applicable) the pricing for the Selected Options; “SaaS” means the software-as-a-service supplied by the Supplier and selected by the Customer by agreement with the Supplier or an Authorized Partner or at the Purchase Location, as modified from time to time by the Supplier; “SaaS Systems” means, as the context permits, the software used by the Supplier to provide the SaaS and/or the equipment on which that software is installed (whether this is the Supplier’s software or equipment or is third party software or equipment); “Security Breach” means access or disclosure of the Data to or by anyone other than the Permitted Users where the access or disclosure occurs through bypassing the security mechanisms of the SaaS Systems; “Selected Hosting” if there are hosting options other than Standard Hosting, means the hosting selected by the Customer from the options offered by the Supplier to the Customer; “Selected Options” means, if there are options to choose from for provision of the SaaS, the options for provision of the SaaS selected by the Customer by agreement with the Supplier, an Authorized Partner or at the Purchase Location (the options may include for example, the Selected Hosting (if applicable), Support Services options, the maximum number of users or the term for which the SaaS is to be provided); “Service Credit” means the Supplier’s service credits (if any), details of which are available on request from the Supplier or relevant Authorized Partner (as applicable) or specified at the Purchase Location; “Support Schedule” means the support schedule which is either attached to these End User Terms or separately provided by the Supplier or Authorized Partner or made available at the Purchase Location, prior to purchase; “Support Services” means the support services provided under the Support Schedule; “Standard Hosting” means the Supplier’s standard hosting offering for the SaaS as notified by the Supplier to the Customer (or if not notified, details are available on request from the Supplier); “Trial” (where available) means use of the SaaS, free of charge; “Trial Period” (where applicable) means the trial period notified to the Customer in writing by the Supplier, Authorized Partner or at the Purchase Location, prior to commencement of the Trial; “Trial SaaS” (if any) means the version of the SaaS made available by the Supplier at its discretion for a Trial. 11.2 Interpretation: In these terms and conditions: (a) reference to the plural includes reference to the singular, and vice versa; (b) headings inserted for convenience of reference only and do not affect the interpretation of the Agreement.