Keasurf - Licence agreement

Software as a service (SaaS) agreement

Keacode Limited And []

Creative Law & Business Ltd 73a Middle Street

Brighton BN1 1AL Tel: 01273 823 770 www.creativelaw.eu

Contents

Background...........................................................................................................3

  1. Definitions and interpretation ..........................................................................3

  2. SaaS Services...............................................................................................7

  3. Use of the SaaS Services and SaaS Applications ......................................................8

  4. SaaS Subscription Fee and Payment ....................................................................9

  5. Warranties ................................................................................................10

  6. Compliance with Applicable Law ......................................................................11

  7. SaaS Provider Intellectual Property Rights and Indemnity ........................................11

  8. SaaS Customer Data and Indemnity ...................................................................12

  9. Data Protection ..........................................................................................13

  10. Confidential Information ...............................................................................13

  11. Limits on liability ........................................................................................14

  12. Force Majeure ............................................................................................15

  13. Term and Termination ...................................................................................16

  14. Exit and Return of SaaS Customer Data ..............................................................16

  15. Notices ....................................................................................................16

  16. Entire Agreement ........................................................................................17

  17. General....................................................................................................17

  18. Disputes ...................................................................................................18

  19. Governing law and jurisdiction ........................................................................19

ScheSaaS Services Schedule....................................................................................20

THIS AGREEMENT is made on [ ] (the ‘Commencement Date’) between the following parties (each a ‘party’ and together the ‘parties’):

  1. (1)  Keacode Limited (the ‘SaaS Provider’); and

  2. (2)  [insert customer name] a company incorporated in [England and Wales] whose registered number is [insert company number] and whose registered office is at [insert registered office] (the ‘SaaS Customer’).

BACKGROUND

  1. SaaS Provider has developed certain software that it wishes to make available as a service to SaaS Customer for the benefit of itself and SaaS Users.

  2. SaaS Customer and SaaS Users will be able to benefit from the SaaS and associated applications by interacting with it remotely through the Internet.

  3. SaaS Provider wishes to provide the SaaS Services and associated SaaS Applications and SaaS Customer agrees to pay for the SaaS Services and associated SaaS Applications on the terms of this Agreement.

1. Definitions and interpretation 1.1. Definitions

'Affiliate'
means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time.

“Accommodation Units” one (1) room (regardless of how many occupants) booked in accordance with the SaaS Services by the SaaS User

'Applicable Law'
means any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances.

'Business Day'
means a day (other than a Saturday or Sunday or public holiday) on which banks are generally open in Brighton for non-automated normal business.

'Confidential Information'
all information whether technical or commercial know-how (including all specifications, inventions, processes, initiatives, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties) given by one party to the other or otherwise obtained by one party relating to the other party’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any Affiliate, person, firm, or organisation associated with that party where the information is:

(a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

'Control'
means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and Controls and Controlled shall be interpreted accordingly.

'Data Controller'
means data controller as defined in the Data Protection Legislation.

'Data Processor'
means data processor as defined in the Data Protection Legislation.

'Data Protection Legislation'
means the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, as amended from time to time, and all other applicable privacy and data protection laws and regulations, as well as any guidance and/or codes of practice issued from time to time by the Information Commissioner.

“Directory” the directory of Surf schools as maintained by the SaaS Provider 'Escalation Committee'

has the meaning set out in clause 18

“Established Membership” the Established membership under the Membership Scheme referred to in the Schedule

'Force Majeure'
means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, or precautions against any such; strikes or ,lock outs OR other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party.

'Good Industry Practice'
means the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector.

'Infringing Data'
has the meaning set out in clause 8

'Intellectual Property Rights'
means copyright, know-how, confidential information, rights in inventions, patents, know- how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-

up, database rights and rights in data, semiconductor chip topography rights, mask works, utility models, domain names and all similar rights and, in each case:

(i) whether registered or not,
(ii) including any applications to protect or register such rights,
(iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and
(v) wherever existing.

'Insolvency Event'
means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

“Lesson Units” one (1) surf lesson booked in accordance with the SaaS Services by the SaaS User

'Losses'
means all bona fide incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgment interest and penalties that are proven to be in direct consequence of a proven breach by the SaaS Provider of the obligations herein

“Membership Scheme” “Member” the mandatory scheme whereby the SasS Customer elects to become a Trial Member; a Start Up Member; an Established Member; an Semi Pro Member; a Pro Member;. The respective Membership grants the SasS Customer the access to the SaaS Services subject to respective SaaS Service Levels rights and restrictions as set out in the Schedule for the Term stated therein

'Personal Data'
means personal data as defined in the Data Protection Legislation and shall include, where applicable, personal data contained within the SaaS Customer Data.

“Pro Membership” the Pro membership under the Membership Scheme referred to in the Schedule

“Rental Units” the rental of one (1) item (e.g. board, car, wetsuit) booked in accordance with the SaaS Services by the SaaS User

'SaaS Customer Data'
means all information of whatever form relating to SaaS Customer, or business that is provided to SaaS Customer in connection with the SaaS Services, including any information provided by SaaS Users in connection with their access to and/or use of the SaaS Services or SaaS Applications.

'SaaS Applications'
means any software or applications owned by SaaS Provider and made available to SaaS Customer as part of the SaaS Services.

'SaaS Customer Applicable Law'
has the meaning set out in clause 6

'SaaS Customer Data Claim'
has the meaning set out in clause 8

'SaaS Customer Indemnified Party'
has the meaning set out in clause 8.

'SaaS Training Material '
means the introduction training session video and On line Guide the SaaS makes available to Saas Customer’s from time to time..

'SaaS Provider Applicable Law'
has the meaning set out in clause 6

'SaaS Provider Indemnified Party'
has the meaning set out in clause 7

'SaaS Provider IPR Claim'
has the meaning set out in clause 7

'SaaS Services'
means the software-as-service and associated use of the SaaS Applications provided remotely to SaaS Customer for the benefit of itself and SaaS Users on a subscription basis in accordance with the Membership Scheme in accordance with the terms of this Agreement, and as further set out in the SaaS Training Material and the Schedule (SaaS Services). Where applicable, this shall include any error corrections, patches, fixes, updates, upgrades, new releases or new versions of software subsequently developed (if any).

'SaaS Service Levels'
means the standards to which the Services (or any part of them) are to be provided as set out in Schedule 1 in accordance with the Membership Scheme (Service Levels).

'SaaS Subscription Fee'
means the fees referred to in clause 4 (SaaS Subscription Fee and Payment) and further set out in the Schedule (SaaS Services).

'SaaS User(s)'
means the users that are authorised to use the SaaS Services on behalf of the SaaS Customer (but not for the avoidance of doubt any third parties) equivalent to the total number of authorised users that actually have access to the SaaS Services in accordance with the respective Membership .

“Semi Pro Membership” the Semi Pro membership under the Membership Scheme referred to in the Schedule

“Start up Membership” the Start up membership under the Membership Scheme referred to in the Schedule

“Trial Membership” the Trial membership under the Membership Scheme referred to in the Schedule

'VAT'
means:

(i) value added tax as defined in the Value Added Tax Act 1994 and

(ii) any similar tax in any other jurisdiction.

1.2. Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1.  the singular includes the plural and vice versa;

1.2.2.  references to sub-clauses, clauses, Schedules or Appendices (if any) are to sub- clauses, clauses, Schedules or Appendices of this Agreement;

1.2.3.  references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

1.2.4.  references to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation;

1.2.5.  in the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail;

1.2.6.  clause and schedule headings do not affect the interpretation of this Agreement; and

1.2.7.  a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

2. SaaS Services

2.1. In consideration of the mutual undertakings agreed under this Agreement, SaaS Provider shall:

2.1.1.  provide the SaaS Services to SaaS Customer for the benefit of itself and the SaaS Users with effect from the Commencement Date in accordance with this Agreement;

2.1.2.  comply with the requirements of Schedule (SaaS Services) in performing its obligations under this Agreement;

2.1.3.  provide the SaaS Services to a standard that meets the SaaS Service Levels; and

2.1.4.  ensure that the SaaS Services are provided with the skill and care to be reasonably expected of a service provider which is a leader in the field of providing services similar to the SaaS Services, including in accordance with Good Industry Practice and with SaaS Provider’s own established internal procedures.

3. Use of the SaaS Services and SaaS Applications

3.1.  SaaS Provider hereby grants a non-transferable, non-exclusive licence for the term of this Agreement to SaaS Customer (for the benefit of itself and the SaaS Users) to use the SaaS Applications and SaaS Training Material to the extent necessary to receive the benefit of the SaaS Services.

3.2.  Prior to providing SaaS Users with access to the SaaS Services, SaaS Applications or SaaS Documentation, SaaS Customer shall

3.2.1. ensure that all SaaS Users are aware of the terms of this Agreement, including their obligation to comply with any other user terms applicable to the SaaS Services, SaaS Applications or SaaS Training Material and notified to SaaS Customer. SaaS Customer shall only provide SaaS Users with access to the SaaS Services via the access method provided by SaaS Provider and shall not provide access to anyone other than a SaaS User.

3.3. SaaS Customer shall ensure that in connection with the receipt of the SaaS Services, SaaS Applications or SaaS Training Material by itself and on behalf of the SaaS Users it shall comply, and shall procure that the SaaS Users comply, with the following conditions of use:

3.3.1. the SaaS Services and/or SaaS Applications may only be used in connection with SaaS Customer’s own business purposes and that of its Affiliates; and

3.4. Except to the extent such activities are expressly agreed by the parties to this Agreement:

3.4.1.  SaaS Customer’s rights to use the SaaS Services and/or SaaS Applications does not permit it, or SaaS Users, to copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the SaaS Services and/or SaaS Applications without the prior written approval of the SaaS Provider ;

3.4.2.  SaaS Customer’s rights to benefit from the SaaS Services and/ or SaaS Applications does not permit it to use the SaaS Services or SaaS Applications to provide outsourced services to third parties or make it available to any third party or allow or permit a third party to do so (without SaaS Provider’s prior written approval);

3.4.3.  SaaS Customer’s rights to benefit from the SaaS Services and/or SaaS Applications does not permit it to combine, merge or otherwise permit the SaaS Services or SaaS Applications (or any part of them) to become incorporated in any other program, nor arrange or create derivative works based on it;

3.4.4.  SaaS Customer’s rights to benefit from the SaaS Services and/or SaaS Applications does not permit it to attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the SaaS Services and/or SaaS Applications, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and

3.4.5.  SaaS Customer’s rights to benefit from the SaaS Services and/or SaaS Applications does not permit it to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the SaaS Services and/or SaaS Applications,

except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.

3.5.  SaaS Customer warrants that it shall, and ensure that SaaS Users shall, keep confidential and, except as provided for in this Agreement, not share with any third party any 'PIN', 'ID' or similar password (if applicable) that it is provided with to facilitate SaaS Users’ access to the SaaS Services and/or SaaS Applications. SaaS Customer shall keep up-to-date records of any such passwords issued to SaaS Users and the names of SaaS Users. SaaS Customer shall contact SaaS Provider if updates to any list of SaaS Users provided to SaaS Provider are required, including when SaaS Users cease to be employed or engaged by SaaS Customer.

3.6.  SaaS Customer shall, and shall procure that the SaaS Users shall, use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, Trojan horses or any other self propagating or other such program) that may infect or cause damage to the SaaS Services, SaaS Applications or SaaS Provider’s systems or otherwise disrupt the provision of the SaaS Services.

3.7.  Where SaaS Customer is permitted in accordance with this Agreement to allow a third party or Affiliate to benefit from the SaaS Services and/or SaaS Applications, SaaS Customer shall ensure that all such use:

3.7.1.  does not exceed SaaS Customer’s permitted use;

3.7.2.  is controlled by SaaS Customer; and

3.7.3.  is otherwise subject to and in accordance with the terms of this Agreement.

3.8.  SaaS Provider reserves the right to monitor usage by all SaaS Users (in terms of audits) during the term of this Agreement for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by SaaS Provider or a third party authorised by SaaS Provider at SaaS Provider’s sole expense. If any audit reveals that any password has been provided to an individual that is not a SaaS User, SaaS Customer shall, without delay, disable any such passwords and notify SaaS Provider immediately.

3.9.  In case of unauthorised use of the SaaS Services by SaaS Customer or a SaaS User, SaaS Provider reserves the right to deny access to the SaaS Services and/or SaaS Applications to SaaS Customer or any SaaS User by blocking without prior notification the IP address(es) of SaaS Customer or SaaS Users used to access the SaaS Services and/or SaaS Applications.

4. SaaS Subscription Fee and Payment

4.1.  SaaS Customer shall pay SaaS Provider the SaaS Subscription Fees in connection with the receipt of the SaaS Services and/or use of the SaaS Applications. The SaaS Subscription Fees shall be subject to review annually

4.2.  The SaaS Provider is not currently registered for VAT. In the event that registration occurs the SaaS customer shall be notified and all amounts due under this Agreement shall exclusive of VAT, sales or other tax applicable which shall be paid in addition by SaaS Customer at the rate and in the manner for the time being prescribed by law (to the extent that it is payable) .

4.3.  If a party fails to make any payment that is properly due to the other under this Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the annual rate of the Late Payment of Commercial Debts rate. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue

amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.

5. Warranties

5.1.  Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

5.2.  SaaS Provider warrants and represents to SaaS Customer that:

5.2.1.  SaaS Provider has the right, power and authority to grant to SaaS Customer the rights (if any) contemplated herein and supply the SaaS Services and/or license the SaaS Applications;

5.2.2.  the SaaS Training Material will provide users with initial instructions to enable them to use the SaaS Services and/or SaaS Applications and thereafter technical support shall be available in accordance with the applicable Membership;

5.2.3.  the SaaS Services and/or SaaS Applications shall in accordance with Good Industry Practice be free from viruses and other malicious code; and

5.2.4.  the receipt of the SaaS Services or the use of the SaaS Applications or SaaS Training Material does not infringe the Intellectual Property Rights of any third party.

5.3.  The warranties (and representations) specified in clause 5.2 are subject to SaaS Customer giving notice to SaaS Provider as soon as it is reasonably practicable to do so upon becoming aware of the breach of warranty (or representation). When notifying SaaS Provider of a breach SaaS Customer shall use its reasonable endeavours to provide SaaS Provider with such documented information, details and assistance as SaaS Provider may reasonably request.

5.4.  Upon notification in writing SaaS Provider undertakes to use all reasonable endeavours to remedy any fault arising from a breach of clause 5.2 within thirty [30] days after notification. If SaaS Provider rectifies such fault within such time then it will have no other liability of any kind in respect of the fault. Such remedy shall be free of charge to SaaS Customer unless the fault is found not to arise from a breach of clause 5.2, at which point SaaS Customer shall pay all reasonable and demonstrable costs and expenses associated with the fault incurred by SaaS Provider.

5.5.  SaaS Customer acknowledges and agrees that:

5.5.1.  the SaaS Services and/or SaaS Applications have not been prepared to meet SaaS Customer’s individual requirements and that they cannot be tested in every operating environment so as to produce software which is error free or operates without interruption; and

5.5.2.  it is SaaS Customer’s responsibility to ensure the facilities and functions of the SaaS Services and/or SaaS Applications meet SaaS Customer’s requirements.

5.6.  SaaS Provider does not warrant or represent that the SaaS Services and/or SaaS Applications shall be:

5.6.1. uninterrupted or error free; or

5.6.2. interoperable with third party software or equipment.

5.7.  Save to the extent set out in this clause 5 (Warranties) or to the extent that any exclusion is prohibited by law, no other representations, warranties or conditions, express or implied, statutory or otherwise (including as to condition, satisfactory quality, performance or fitness for purpose), are given or assumed by SaaS Provider in respect of the SaaS Services, SaaS Applications and/or SaaS Training Material and any such representations, warranties or conditions are hereby excluded.

5.8.  Any warranties given by SaaS Provider shall be subject to SaaS Customer using the SaaS Services and/or SaaS Applications in compliance with this Agreement, and SaaS Provider shall not be liable under this clause for, or required to remedy, any problem arising from any defect or error wholly caused by third party software used in connection with the SaaS Services and/ or SaaS Applications.

6. Compliance with Applicable Law

6.1.  SaaS Provider shall provide the SaaS Services in accordance with Applicable Law to the extent that such Applicable Law is general in nature or which affects or relates to a supply of services that are the same or similar to the SaaS Services (‘SaaS Provider Applicable Law’).

6.2.  SaaS Customer shall use the SaaS Services and/or SaaS Application in accordance with Applicable Law to the extent that such Applicable Law is specific to the business of SaaS Customer (‘SaaS Customer Applicable Law’).

7. SaaS Provider Intellectual Property Rights and Indemnity

7.1.  All Intellectual Property Rights in and to the SaaS Services, SaaS Applications and SaaS Training Material shall vest and remain vested in SaaS Provider. To the extent that SaaS Customer acquires any Intellectual Property Rights in the SaaS Services, SaaS Applications and/or SaaS Documentation, SaaS Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to SaaS Provider. SaaS Customer shall execute all such documents and do such things as SaaS Provider may consider necessary to give effect to this clause.

7.2.  SaaS Provider shall indemnify, and keep SaaS Customer and its Affiliates, SaaS Users, officers, directors, employees, agents, successors, and assignees (the ‘SaaS Provider Indemnified Party’) indemnified at all times from and against any and all Losses, which are suffered by, and defend, and hold harmless against any Losses which are brought or threatened against, the SaaS Provider Indemnified Party, in respect of the use of the SaaS Services and/or SaaS Applications or possession of the SaaS Training Material infringing the Intellectual Property Rights of any third party (‘SaaS Provider IPR Claim’), provided that SaaS Provider shall have no such liability if SaaS Customer:

7.2.1.  does not notify SaaS Provider in writing setting out full details of any SaaS Provider IPR Claim of which it has notice within forty eight (48) hours ;

7.2.2.  makes any admission of liability or agrees any settlement or compromise of the relevant SaaS Provider IPR Claim without the prior written consent of SaaS Provider (which shall not be unreasonably withheld or delayed);

7.2.3.  does not let SaaS Provider at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant SaaS Provider IPR Claim; or

7.2.4.  does not, at SaaS Provider’s request and own expense, give SaaS Provider all reasonable assistance in the circumstances described above.

7.3. If any SaaS Provider IPR Claim is made or is reasonably likely to be made against SaaS Provider Indemnified Party, SaaS Provider shall promptly and at its own expense either:

7.3.1.  procure for SaaS Customer the right to continue using the SaaS Services and/or SaaS Applications or continue to have access to the SaaS Training Material ; or

7.3.2.  modify or replace the infringing part of the SaaS Services, SaaS Applications and/or SaaS Training Material and without adversely affecting the functionality of the SaaS Services as set out in this Agreement so as to avoid the infringement or alleged infringement, provided that if SaaS Provider having used its reasonable endeavours, neither of the above can be accomplished on reasonable terms, SaaS Provider shall (without prejudice to the indemnity above) refund the SaaS Subscription Fees paid by SaaS Customer in respect of the SaaS Services and/or SaaS Applications. Apart from the indemnity given by SaaS Provider above, this shall be SaaS Customer’s sole and exclusive remedy in respect of the SaaS Services infringing Intellectual Property Rights.

8. SaaS Customer Data and Indemnity

8.1.  SaaS Customer hereby grants (and shall procure the grant of) a royalty-free, non-transferable (save to the extent set out in this clause 8), non-exclusive licence for the term of this Agreement to SaaS Provider (together with a right for SaaS Provider to sub-licence the same to and any third party suppliers for use on SaaS Provider’s behalf) to use the SaaS Customer Data to the extent necessary to perform the SaaS Services and/or provide access to the SaaS Applications.

8.2.  SaaS Customer acknowledges that SaaS Provider has no control over any SaaS Customer Data hosted as part of the provision of the SaaS Services and does not purport to monitor the content of the SaaS Customer Data. Notwithstanding the foregoing the SaaS Provider shall have the right to use the name and details of the SaaS Customer and images from its website in the Directory .

8.3.  SaaS Customer shall, and shall procure that, the SaaS Customer Data does not:

8.3.1.  breach Applicable Law;

8.3.2.  infringe any third party Intellectual Property Rights; or

8.3.3.  contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous,

(together ‘Infringing Data’).

8.4.  SaaS Provider shall notify SaaS Customer immediately if it becomes aware of any allegation that any SaaS Customer Data may be Infringing Data and SaaS Provider shall have the right to remove SaaS Customer Data from the SaaS Services without the need to consult SaaS Customer.

8.5. SaaS Customer shall indemnify, and keep SaaS Provider and its Affiliates, officers, directors, employees, agents, successors, and assignees (the ‘SaaS Customer Indemnified Parties’) indemnified at all times from and against any and all Losses, which are suffered by, and defend, and hold harmless against any Losses which are brought or threatened against, SaaS Indemnified Party, in respect of any Infringing Data (‘SaaS Customer Data Claim’), provided that SaaS Customer shall have no such liability if SaaS Provider:

8.5.1.  does not notify SaaS Customer in writing setting out full details of any SaaS Customer Data Claim of which it has notice as soon as is reasonably possible;

8.5.2.  makes any admission of liability or agrees any settlement or compromise of the relevant SaaS Customer Data Claim without the prior written consent of SaaS Customer (which shall not be unreasonably withheld or delayed);

8.5.3.  does not let SaaS Customer at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant SaaS Customer Data Claim; or

8.5.4.  does not, at SaaS Customer’s request and own expense, give SaaS Customer all reasonable assistance in the circumstances described above.

9. Data Protection

9.1.  Each party shall provide the other party with reasonable assistance in complying with its obligations under applicable Data Protection Legislation insofar as necessary to facilitate each party’s compliance with each party’s obligations in this Agreement.

9.2.  The parties acknowledge and agree that SaaS Customer shall be the Data Controller in respect of any Personal Data contained within the SaaS Customer Data.

9.3.  In connection with the provision of the SaaS Services, the Data Processor shall:

9.3.1.  process the Personal Data belonging to the Data Controller only in accordance with instructions from the Data Controller;

9.3.2.  process the Personal Data belonging to the Data Controller only to the extent, and in such manner, as is necessary for the performance of its obligations under this Agreement;

9.3.3.  implement appropriate technical and organisational measures to protect the Personal Data belonging to the Data Controller against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;

9.3.4.  obtain prior written consent from the Data Controller in order to transfer the Personal Data belonging to the Data Controller to any sub-contractors or third parties; and

10. Confidential Information

10.1. Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the

other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.

10.2.  Each party undertakes to:

10.2.1.  disclose the other party’s Confidential Information only to those of its officers, employees, agents, professional advisers and contractors (including SaaS Provider personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and

10.2.2.  to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

10.2.3.  Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.

10.3.  The provisions of this clause shall not apply to information which:

10.3.1.  is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;

10.3.2.  is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;

10.3.3.  is independently developed by the recipient, without access to or use of such information; or

10.3.4.  is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.

10.4.  The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.

11. Limits on liability

11.1.  Subject to the following sub-clauses and the provisions of para 5.4 , in no event shall the aggregate liability of any party to the other party (or any SaaS Users), including liability for breach of contract (including under any indemnity), misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising, in respect of all Losses arising under this Agreement exceed an amount equivalent to three (3) months Subscription Fee

and in any event there shall be no liability to the SaaS Provider unless thirty (30) days notice of (a) the basis for such a claim (b) details alleged loss and (c) prove thereof is given to the SaaS Provider and the SaaS Provider approves such claim (such approval not to be unreasonably withheld or delayed)

11.2.  Subject to clause 11.4, under no circumstances shall either party be liable to the other party (or any SaaS Users) for any of the following types of loss or damage arising under or in relation to the Agreement (whether arising for breach of contract (including under any

indemnity), misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising):

11.2.1.  any loss of profits, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or

11.2.2.  any indirect or consequential loss or damage whatsoever,

even if that party was aware of the possibility that such loss or damage might be incurred by the other.

11.3.  The above limits on liability shall limit either party’s financial liability for any indemnities provided by either party under this Agreement including the indemnity under clause 7 (SaaS Provider Intellectual Property Rights and Indemnity).

11.4.  Notwithstanding the above neither party excludes or limits any liability for:

11.4.1.  personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;

11.4.2.  fraud, fraudulent misrepresentation or fraudulent concealment;

11.4.3.  any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

11.4.4.  any other liability to the extent the same cannot be excluded or limited by law.

11.5.  The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.

12. Force Majeure

12.1.  Neither party (the ‘claiming party’) shall be liable to the other for any delay or failure to perform any of its obligations hereunder to the extent such delay or failure is due to Force Majeure provided that:

12.1.1.  the claiming party could not have avoided such circumstances by taking precautions which it ought reasonably to have taken or planned for;

12.1.2.  the claiming party has used and continues to use its reasonable endeavours to mitigate the consequences of such an event upon the performance of its obligations under this Agreement and to continue to perform its affected obligations;

12.1.3.  the claiming party shall not be excused performance of its obligations unaffected by Force Majeure; and

12.1.4.  the claiming party shall resume performance of its obligations affected by Force Majeure as soon as reasonably practicable.

12.2.  The claiming party shall promptly give written notice forthwith to the other upon becoming aware of Force Majeure, which notice shall contain details of the circumstances giving rise to Force Majeure and its anticipated duration.

12.3. If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than [90] days, the other party may, within a further 10 days can terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

13. Term and Termination

13.1.  This Agreement shall commence on the Commencement Date and shall (subject to earlier termination pursuant to this clause 13) continue in accordance with the Term as applicable the respective Membership the SaaS Customer has elected to join in accordance with the Membership Scheme . It shall thereafter continue automatically until terminated in accordance with the terms of this Agreement.

13.2.  After the respective fixed Term (if applicable) in accordance with the applicable the respective Membership the SaaS Customer either party shall have the right to terminate this Agreement without liability to the other party on the provision of one (1) months written notice to the other party. In relation to Trial Membership and Start up Memberships either party shall have the right to terminate this Agreement without liability to the other party on the provision of one (1) months written notice to the other party

13.3.  Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement if the other:

13.3.1.  is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or

13.3.2.  is the subject of an Insolvency Event.

14. Exit and Return of SaaS Customer Data

14.1.  In the event of termination of this Agreement for any reason:

14.1.1.  the right to access the SaaS Services, SaaS Applications and/or SaaS Training Material provided under this Agreement shall terminate immediately;

14.1.2.  SaaS Customer shall within 7 days return or destroy (at SaaS Provider’s option) all SaaS Provider’s Confidential Information in its possession or under its control and all copies of such information; and

14.1.3.  all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

14.2.  On the termination or expiry of this Agreement, SaaS Provider shall at the cost of SaaS Customer return (at SaaS Customer’s option) all SaaS Customer Data in a format designated by the SaaS Provider.

15. Notices

15.1. Any notice or other communication given to a party under or in connection with the Agreement (a ‘Notice’) shall be in writing addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.

15.2.  A Notice shall be deemed to have been received:

15.2.1.  if delivered personally: when left at the address referred to in clause 15.1 (Notices);

15.2.2.  by first-class post: two Business Days after posting;

15.2.3.  by airmail: seven Business Days after posting;

15.2.4.  by hand: on delivery;

15.2.5.  by e-mail: on receipt of a read return mail from the correct address within 24 hours from delivery if no notice of delivery failure is received.

15.3.  The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16. Entire Agreement

16.1.  This Agreement constitutes the entire agreement between the parties in relation to its subject matter and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings, or collateral contracts of any nature made by the parties, whether oral or written, in relation to that subject matter.

16.2.  Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other party in relation to the subject- matter of this Agreement at any time before its signature, other than those which are set out expressly in this Agreement.

16.3.  Each party hereby waives all rights and remedies which might otherwise be available to it in relation to any statements or other representations made under clause 16.2, but for clause 16.4.

16.4.  Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre- contract fraudulent misrepresentation or fraudulent concealment.

17. General

17.1.  Any variation to the Agreement, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by both parties.

17.2.  In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.

17.3.  Nothing in this Agreement shall (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.

17.4.  For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

17.5.  No party may assign, novate, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other’s prior written consent or except as expressly permitted in this Agreement.

17.6.  No amendment or variation of this Agreement will be valid unless agreed in writing by an authorized signatory of each party.

17.7.  If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17.8.  A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

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

17.10.  All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.

17.11.  The amounts due under this Agreement shall not change except as mutually agreed by the parties.

17.12.  Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

18. Disputes

18.1.  If either party has any dispute with the other in connection with this Agreement, then that party will promptly give full written particulars of the dispute to the other party, and the parties will, within seven (7) days of delivery of those particulars, meet and in good faith try to resolve the dispute.

18.2.  If the dispute is not resolved within seven (7) days of written particulars being given to the parties (or any longer period agreed to by the parties) the dispute shall be escalated to a SaaS customer representative and a SaaS Provider Representative](the ‘Escalation Committee’) for resolution.

18.3.  If within seven (7) days of the dispute being referred to the Escalation Committee the dispute is not resolved the parties shall consider whether the dispute should be referred to an alternative dispute resolution procedure (including mediation, arbitration or binding expert determination). If the parties do not agree that the dispute should be referred to an alternative dispute resolution within seven (7) days of a failure to resolve the dispute at the Escalation Committee in accordance with this clause 18, either party shall be entitled to commence proceedings in court.

18.4.  Nothing in this clause shall prejudice the right of either party to:

18.4.1.  apply to Court for interim relief to prevent the violation by the other party of any proprietary interest, or any breach of the other party’s obligations which could cause irreparable harm to the first party; or

18.4.2.  bring proceedings intended to result in the enforcement of a settlement agreement entered into between the parties in accordance with the foregoing provisions of this clause 18 or otherwise.

19. Governing law and jurisdiction

19.1.  This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England. Note to the SaaS Customers outside the UK the laws may differ regarding aspects of this licence but by signing this agreement you submit to the laws of England

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