MASTER SUBSCRIPTION - ON PREMISE

Master Subscription - On Premise

1.0 INTERPRETATION

1.1The terms defined in the Term Sheet shall apply in this Agreement.

1.2A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time. A reference to a statute or statutory provision includes any subordinate legislation made from time to time under that statute or statutory provision.

1.3Any 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.

1.4A reference to writing or written includes fax and email.

2.0 THE SUBSCRIPTION SERVICES

2.1The Software is the proprietary software applications modules listed in the term sheet under the relevant trade names, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer (“Software”).

2.2Subject to the Customer complying with its obligations under this Agreement, including without limitation any payment obligations, the Supplier hereby grants the Customer, on the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable right, without the right to sell or grant sub-licenses, to use the Software and Documentation solely for the Customer’s internal business purposes (“Services”) on a subscription basis.

3.0 DOCUMENTATION

The documentation for the Software and related information(“Documentation”) set out a description of the functionality and user instructions for the Software, and may be amended by Supplier in its sole discretion from time to time. The Documentationis available at the Customer Portal.

4.0 CONSULTANCY SERVICES AND TRAINING

The Supplier will, subject to resource availability, provide additional consultancy services and training on request by the Customer on the terms and conditions set out on the Customer Portal.

5.0 SUPPORT

5.1In order to request support, the Customer must contact the Supplier through Phone or the Customer Portal with a detailed description of the issue. The Supplier is responsible for having personnel available that can give the Customer support for all Software as described below. The Supplier will deliver support by phone and e-mail, and by connecting to the Customer’s servers when required. The Supplier will log and provide support only for incidents requested through the Customer Portal.

5.2The Supplier shall deliver support from the UK, as follows:

• Working hours: 9:00 to 5:00 pm, except Saturdays, Sundays and other days on which the banks in England are closed
• Language: English
• Phone: +44 1494 622 722

5.3Support is free of charge if Asolvi hasn’t provided the tools for the customers to do it themselves, i.e helpfiles and utilities. Errors or malfunctions reported under clause 7 is free of charge. Consultancy, report writing and Data manipulation is chargeable at our standard rates.

5.4Asolvi Support – Target Software Defects SLA’s

Class of Fault	Nature of Fault	Response Time
1	Critical System down. The entire Software is unavailable.	Response within 2 hours
2	Critical.A malfunction of Asolvi product such that a business critical process cannot be completed, or one that it is creating database inconsistency with no workaround.	Response within 4 hours
3	Non-critical.Software function is affected, but does not create inconsistency in the database or prevent critical business process from being completed. The Fault has an impact on operations but work can continue via workaround.	Response within 16 hours
4	Minor. Minor Faults, mostly cosmetic in nature.	Response within 1 week

 

Response Time is measured from the point that Asolvi have received enough information from the Customer to assess correct Class of Fault, and applies to Working Hours only.

6.0 NEW SOFTWARE VERSIONS

6.1Provided the Customer is not in breach of any of its obligations under this Agreement, the Customer shall have access to all new releases of the Software during the Subscription Period (as defined in clause 15). New software versions can contain new functionality as well as corrections of errors and malfunctions. The Supplier shall make these releases available to the Customer by supplying complete installation files downloadable from the Supplier’s web pages or from web pages/sites approved by the Supplier.

6.2Along with every new release, "release notes” will be supplied which describe what has changed since the last release. Should the Customer need assistance when upgrading the Software, this will be subject to agreement and invoicing as set out in clause 4.

7.0 ERRORS OR MALFUNCTIONS

Should the Customer wish to point out errors and malfunctions within the Software, the Customer must do so via the Customer Portal without delay. The Supplier will support releases that are up to 18 months old from the then-current date.

8.0 SUPPLIER WARRANTY

8.1Subject to clause 8.2, the Supplier undertakes that the services it provides under this Agreement will be performed with reasonable skill and care.

8.2The Supplier:

• is not responsible for any non-conformance which is caused by use of the Software contrary to the Supplier’s instructions, or modification or alteration of the Software by any party other than the Supplier or its duly authorized contractors or agents;
• does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free, nor that the Documentation or any services provided under this Agreement will meet the Customer's requirements; and
• is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that use of the Software or the provision of other services by the Supplier may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.3During the term of this Agreement, the Supplier will update those error corrections/bug fixes, updates, upgrades, modifications and enhancements to the Software which it considers reasonable as soon as practicable.

9.0 CUSTOMER OBLIGATIONS

The Customer shall:

• allow only suitably trained personnel to use the Software and the Services;
• comply with its obligations under this Agreement and all applicable laws and regulations with respect to its activities under this Agreement; and
• obtain and maintain all necessary licences, consents, and permissions necessary for the Supplier, its independent contractors and agents to perform their obligations under this Agreement.

10.0 CUSTOMER DATA

10.1The Customer shall own all rights, title and interest in and to the data inputted into the information fields of the Software by the Customer or by the Supplier on the Customer’s behalf (“Customer Data”) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

10.2If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Supplier shall be a data processor and the parties agree that the terms of the Data Processing Agreement attached to this Agreement shall apply.

11.0 NON-DISCLOSURE

11.1Confidential Information includes any information of a party that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information, and any Customer Data. Confidential Information shall not include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv)is independently developed by the receiving party, which can be shown by written evidence.

11.2Subject to clause 11.3, each party shall hold the other’s Confidential Information in confidence and, unless required by law, shall not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than that required by this Agreement.

11.3A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.

11.4The provisions of this clause 11shall survive termination of this Agreement, however arising but shall cease to apply to any particular item of Confidential Information once it becomes public knowledge other than by any act or default of the non-disclosing party.

12.0 PRICE AND PAYMENT

12.1During the Subscription Period (as defined in clause 15.1), the Customer shall pay the Software Subscription Fees (defined in the Term Sheet) to the Supplier in accordance with this clause 12. The Software Subscription Fees shall be calculated on an annual basis in accordance with Appendix A.

Payment schedule

12.2The Supplier shall invoice the Customer for the Software Subscription Fees as follows:

• in the first calendar year of the Initial Subscription Period, from the Commencement Date to the end of the following December; and
• subject to clause 12.1, quarterly in advance during the remainder of the Initial Subscription Period and any Renewal Term; and
• at the end of any calendar year during the term, in respect of any additional Software Subscription Fees payable for that year arising as a result of the KPI Calculation performed by Supplier, as described in Appendix A.

Payment terms, taxes

12.3All Software Subscription Fees are non-refundable and are exclusive of value added tax any and all other taxes imposed by any domestic or foreign taxing authority such as sales, use, excise, customs duties or other taxes, consumption, access, other tax, fees or surcharges (including, but not limited to regulatory fees or surcharges) ("Taxes"). All Taxes shall be added to the Supplier’s invoice(s) at the appropriate rate and the Customer will pay all such Taxes required by law including those paid or payable by the Supplier, and any related interest and penalties.

12.4If the Customer is obliged under mandatory law to withhold any taxes on the deliverables from payment of any sums due under this Agreement, the Customer shall when paying for the deliverables also pay to the Supplier an amount corresponding to the amount withheld. The Supplier shall assist the Customer, at the Customer's cost, in relation to potential refunds of any withheld amounts.

12.5Each invoice is due and payable thirty (30) calendar days after the invoice date and the Customer shall pay such amount in full without delay, set-off or counterclaim.

Payment default

12.6If the Supplier has not received payment within thirty (30) calendar days after the due date, without prejudice to any other rights and remedies available to it, the Supplier:

(a) may suspend provision of the Software and/or any services agreed to be provided by Supplier while the invoice(s) concerned remain unpaid; and

(b) reserves the right to charge interest on overdue amounts in accordance with The Late Payment of Commercial Debts (Interest) Act 1998 as amended by The Late Payment of Commercial Debts Regulations 2002. Interest shall be calculated on a monthly basis.

12.7TheSupplier shall be entitled to increase the Software Subscription Fees to reflect changes in the costs of maintaining and developing the Software upon prior notice to the Customer and shall be deemed to have been amended accordingly.

13.0 INDEMNITY AND LIMITATION OF LIABILITY

Indemnity

13.1The Customer shall indemnify the Supplier and other members of the Asolvi Group against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Customer, its employees, independent contractors, or agents’s use of the Software, Documentation or services.

Limitation of liability

13.2Except as expressly provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

13.3The Supplier shall have no liability for results obtained from use of the Software and the services by the Customer, for conclusions drawn from such use or for any damage caused by any information, instruction or scripts provided by the Customer to the Supplier or for any actions taken by the Supplier at the Customer’s direction.

13.4Nothing in this Agreement excludes the liability of the Supplierfor (i) death or personal injury caused by the Supplier’s negligence; (ii) fraud or fraudulent misrepresentation; or (ii) for any other liability that may not be limited or excluded as a matter of law.

13.5Subject to clause 13.4:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, business, goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and

(b) the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance of this Agreement shall be limited to the total Software Subscription Fees paid by the Customer in the year preceding the breach or negligent act in question; and

(c) the Software, Services and/or other services provided by the Supplier under this Agreement, and the Documentation, are provided on an ‘as is’ basis.

14.0 INTELLECTUAL PROPERTY RIGHTS

14.1The Customer acknowledges and agrees that the Supplier and/or its licensors and suppliers own all copyright and any and all other intellectual property rights of whatever nature to the Software (including any improvements made thereto and the Documentation). Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, any services provided under this Agreement or any related documentation.

14.2The Supplier warrants that it has all the rights and licences in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

14.3The Customer shall not:

(a) Use or duplicate, copy, modify, create derivative works from all or any portion of the Software (or any part thereof) or the Documentation for any purpose other than as specified in this Agreement or as may not be restricted by applicable law or make the Software or the Documentation available to unauthorized third parties;

(b) sub license, assign, dispose or transfer the Software and/or any Documentation;

(c) distribute or represent that it is a reseller of, or entitled to license or sub-license, the Software; or

(d) attempt to reverse engineer, disassemble, decompile or otherwise reduce to human-perceivable form all or any part of the Software or change the Software or Documentation, or permit anyone to do so except as may be allowed by any applicable law; or

(e) use the Software or Documentation to provide services to third parties nor attempt to obtain, or assist third parties in obtaining, access to the Software or Documentation other than as provided under this clause 14.

14.4The Customer undertakes and warrants that it will take all reasonable precautions to safeguard the Software and all copies thereof against unauthorized use in accordance with the terms of this Agreement.

15.0 TERM AND TERMINATION

15.1This Agreement shall commence on the Effective Date and shall continue for a period of thirty six (36) months (“Initial Subscription Period”), unless otherwise terminated in accordance with this clause 15.

15.2This Agreement shall automatically renew for a further 12 month period (the “RenewalPeriod”) at the end of the Initial Subscription Period and at the end of each Renewal Period, unless either party gives the other party notice of termination, in writing, of at least three (3) calendar months before the end of the Initial Subscription Period or Renewal Period.

15.3The Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than thirty (30) calendar days after being notified in writing to make such payment; and/or

(b) there is a change of control of the Customer, where 'control' means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.

15.4This Agreement may also be terminated immediately by either party serving notice in writing on the other party:

(a) an administrator, administrative receiver, receiver or manager, liquidator, provisional liquidator or similar officer is appointed in respect of the whole or any part of the other party’s assets (save for the purposes of a solvent reconstruction or amalgamation), and/or a winding up petition is issued against a party; or if a party proposes to enter or enters into any composition or arrangement with its creditors generally or any class of creditors; or the other party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due; or any event occurs, or proceeding is taken, with respect to the other party in any other jurisdiction that has an equivalent or similar effect to any of the events mentioned in this clause above;or the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

(b) if the other party commits a material breach of any part of this Agreement, and if the breach is capable of remedy, that other party has failed to remedy within thirty (30) days after being notified in writing to do so; and

(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it.

16.0 CONSEQUENCES OF TERMINATION

16.1The termination of this Agreement shall be without prejudice to the rights, remedies, obligations or liabilities of parties that have accrued up to the date of such expiry or termination.

16.2On termination of this Agreement, the Customer will:

(a) Deliver to the Supplier all copies of the Software and Documentation and all copies, books, records or other tangible things in its possession which relate to the Software and the Documentation;

(b) Satisfy the Supplier that the Customer has erased all copies it holds of the above in any computer system or electronic storage medium; and

(c) not be entitled to any refund or compensation for any loss or damage resulting from the Supplier terminating or suspending the provisions of services in accordance with this Agreement.

16.3On termination of this Agreement:

(a) the right to use the Services granted to the Customer under this Agreement shall immediately terminate;

(b) the Supplier shall be entitled to destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten (10) calendar days after termination of this Agreement, a written request for the then most recent back-up of the Customer Data. The Supplier shall deliver the back-up within such period as may be agreed, provided that the Customer has paid all outstanding Licence Fees and all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data.

17.0 GENERAL

17.1 Assignment

The Customer may not assign, sub-contract, charge or otherwise transfer or deal in any of its rights or obligations under this Agreement without the Supplier’s prior written consent. The Supplier is entitled to assign this Agreement to any affiliate of the Supplier.

17.2This Agreement constitutes the entire agreement between the parties and supersedes any agreements, understandings, warranties, representations and promises whether written or oral made or existing between the Customer and the Supplier relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.

17.3Except as otherwise provided herein no waiver, addition, amendment to or modification of this Agreement shall be effective unless it is in writing and, in the case of any addition, amendment or modification, signed by or on behalf of both parties.

17.4If any of the provision of this Agreement is judged to be invalid, illegal or unenforceable, the other provisions shall remain in-full force and effect.

17.5The Supplier’s group companies or any third party software licensors may enforce the terms of this Agreement in accordance with the provisions of the Contracts (Rights of Third Parties) Act 1999, but nothing in this Agreement confers any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

17.5 Notices

Any notice to be given under this Agreement shall be in writing and delivered to the relevant party at its address by hand, pre-paid first-class post or recorded delivery post, or by e-mail (provided that a copy and copy of any relevant transaction report is given by hand or sent by pre-paid first-class post or recorded delivery post within twenty-four (24) hours of transmission).

17.6 Choice of law and jurisdiction

This Agreement, its construction and any dispute arising out of or in connection with it shall be governed by the laws of England and Wales and the parties agree that any legal action, suit or proceeding with respect to any obligation, liability or other matter under or arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the English courts.