SOFTWARE AS A SERVICE AGREEMENT FOR BRANDIN

This Software as a Service Agreement (“SaaS Agreement” or “Agreement“) is effective as of the date specified in the Order Form, or if no Order Form the date of Account creation (“Effective Date“) and is made between:

(1) BrightCarbon Limited, an English company with its registered office at Digital World Centre, 1 Lowry Plaza, The Quays, Mediacity, Salford, M50 3UB, United Kingdom, (company no. 7869834) (the “Supplier“); and

(2) The “Customer” being the company specified in the Order Form or during Account creation for use of the Software.

The parties agree as follows:

1.        Definitions

1.1       The following terms have the following meanings:

Account: the Customer’s account created to use the Software, including all Users associated with the Customer, through which the Customer accesses and uses the Software and Services,  as part of any Plan.

Affiliate: in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party. In this context, “control” means ownership by one entity, directly or indirectly, of more than 50% of the voting shares of another entity; or the power of one entity to direct the management or policies of another entity.

Business Day: any day except Saturday, Sunday, and public holidays.

Confidential Information: in relation to either party all information which is disclosed to, or otherwise learnt or acquired by the other party in connection with the Agreement and which is either marked “confidential”; or which a reasonable person would recognise is confidential or proprietary given its nature or the circumstances of disclosure. Confidential Information includes trade secrets, know-how, formulae and processes, scientific research, clinical developments, business affairs and plans; or project and technology-related matters, including design/performance specifications, operating procedures, systems documentation, utility reference manuals, language reference manuals, data, algorithms, software and documentation, models, financial information, inventions, designs, contractual information (including pending deals), vendor information, customer information (including patient and supplier lists), prices and costs and information and data related to regulatory submissions.

Customer Data: all text, files, images, graphics, illustrations, information, data (including Personal Data or personal data), audio, video, photographs and any other content and materials, in any format, that is provided by or on behalf of Customer or obtained by Supplier or Supplier Personnel in connection with or the performance of Supplier’s obligations under the Agreement, including any data and information that is entered into or stored by or on behalf of Customer or derivatives of such data or information.

Data Protection Legislation: all legislation applicable to data protection and privacy in force from time to time including the Data Protection Act 2018 (DPA 2018); the UK GDPR (which has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018); the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications) and to the extent the EU GDPR (General Data Protection Regulation (EU) 2016/679) (or any member state of the EU to which the Customer is subject) applies.

Enterprise Plan: a subscription plan for 50+ users, with access to the features listed online.

Enterprise Team Plan: a subscription plan for 5 to 50 users, with access to the features listed online.

Enterprise Trial Plan: a Free Trial of the Enterprise Team Plan, being a free time-limited plan to evaluate the Enterprise Team Plan features as listed online.

Fair Usage Policy: the policy that governs the use of the Freemium Plan, which may be updated by Supplier from time to time, and which permits Supplier to terminate access to the Freemium Plan in its sole discretion if the costs of delivering the service rise materially, significantly, or uncontrollably.

Fees: the licence fees for the Software, and for the Support Services, as specified in the Order Form, and any other fees agreed between the parties from time to time.

Freemium Plan: a free plan for 1 to 4 users, with access to the features listed online, subject to the Fair Usage Policy.

Free Trial: an initial free period of 30 days during which the Customer may use a Plan of the Software and Services (other than the Freemium Plan) for zero Fees.

Inactive Account: an account that, in Supplier’s sole discretion, has not been actively used for an extended period of time.

Intellectual Property Rights or IPR: patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (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.

Law: all: (i) laws, statutes, rules, regulations, government orders and associated guidance; (ii) binding court orders; and (iii) industry guidance and standards.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order Form: an order form for the Software and Services, as agreed by the parties, including any Special Terms.

Personal Data: has the meaning given to it in the Data Protection Legislation.

Personnel: any employee, agent, subcontractor (including any subcontractor employee or agent) and other representative of a party or its Affiliate.

Plan: any plan of the Software and Services, including the Freemium Plan, Small Business Plan, Enterprise Team Plan and Enterprise Plan, and any other new Plan that may be made available from time to time, the full details of which are set out (and updated from time to time) at https://www.brightcarbon.com/brandin/brandin-plans-saas/.

Service Level Agreement or SLA: the Service Level Agreement set out in Schedule 1 to this Agreement.

Service Levels: the service levels set out in the SLA.

Services: the Software (delivered as a service) and the Support Services, relating to the Software.

Small Business Plan: a subscription plan for 5 to 500 users, with access to the features listed online

Software: the BrandIn software add-in to Microsoft 365 Office Apps, accessed as a service.

Special Terms: any special terms agreed by the parties as part of this Agreement that amend and override the Agreement, as agreed by both parties in the Order Form.

Support Services: the support services relating to the Software, covering helpdesk, implementation, maintenance and training, as described in Clause 3.

Term: has the meaning provided in Clause 9.

User: an individual user of the Software, including brand administrators and standard users, using the Software as an employee or representative of the Customer.

1.2       In this Agreement, unless the context otherwise requires:

1.2.1       a reference to a person includes reference to that person’s successors, legal representatives, permitted assigns, and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction, or other re-organisation involving that person.

1.2.2       the headings to the paragraphs are inserted for convenience only and do not affect the interpretation.

1.2.3       any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.

1.2.4       a reference to an act or regulation includes new law of substantially the same intent as the act or regulation referred to.

2.        PROVISION OF SOFTWARE AND RELATED SERVICES

2.1       The Supplier shall, during the Term, provide the Customer with:

2.1.1       the Software; and

2.1.2       the Support Services;

in accordance with the terms of the Order Form and this Agreement (including the Service Levels in the Service Level Agreement).

2.2       In consideration of payment of the Fees, during the Term the Supplier grants Customer a worldwide, perpetual, non-exclusive licence for Users to use the Software for Customer’s internal purposes, in accordance with the terms of this Agreement. The licence of the Software will automatically terminate upon the expiration or termination of this Agreement.

2.3       The parties acknowledge and agree that any use of the Software by Customer’s Affiliates will be subject to the same terms and conditions of this Agreement that are applicable to Customer. Customer warrants that it has the authority to bind each Customer Affiliate to the terms and conditions of this Agreement as provided herein. Customer agrees that a breach of this warranty shall constitute an actionable claim by Supplier against Customer to the extent that Supplier sustains losses or damages resulting from such breach.

2.4       Supplier retains ownership of the Software and reserves all rights to the Software not expressly granted herein.

2.5       The Software is available in multiple Plans. The Customer acknowledges and agrees that:

2.5.1       the Customer’s and its Users’ use of the Freemium Plan is subject to the Fair Usage Policy;

2.5.2       the Supplier may terminate or suspend the Customer’s access to the Freemium Plan at any time and for any reason in Supplier’s sole discretion, including but not limited to if the costs of delivering the service rise materially, significantly, or uncontrollably;

2.5.3       the Supplier may delete any Inactive Account and all Customer Data associated with it without prior notice or liability to the Customer; and

2.5.4       all provisions of this Agreement apply to the Customer’s use of the Software, whichever Plan the Customer is using.

3.        SUPPORT SERVICES

3.1       Supplier will, as part of the Services, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with Supplier’s support services policy in effect at the time that the Services are provided. Supplier may amend the support services policy in its sole and absolute discretion from time to time.

4.        CUSTOMER OBLIGATIONS

4.1       The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part. The Customer may not use any such information provided by the Supplier to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

4.2       The Customer acknowledges that the Software only works in conjunction with Microsoft 365 Office apps, and also requires a connection to the internet to function. The Customer shall be solely responsible for ensuring it has the appropriate licences and rights to use Microsoft 365 Office apps, and that it has a continuous connection to the internet, and will indemnify Supplier in full for any breach of this clause.

4.3       The Customer shall be responsible for maintaining a subscription to Microsoft 365, and for maintaining a continuous internet connection for itself and its Users, and for providing access to its sites and systems as required, so that the Supplier can provide the Software and deliver the Services.

4.4       The Customer shall not have the right to grant sub-licences to any other party to use the Software. The Customer shall not sub-license, assign or novate the benefit or burden of this Agreement in whole or in part.

4.5       The Customer shall:

4.5.1       notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;

4.5.2       pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 7.6, from such date to the date of payment.

4.6       The Customer may not use the Services:

4.6.1       in any way that breaches any applicable local, national or international law or regulation or any code of practice;

4.6.2       in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect;

4.6.3       in a way that may expose Supplier to criminal liability;

4.6.4       for the purpose of harming or attempting to harm minors in any way;

4.6.5       to bully, insult, intimidate or humiliate any person;

4.6.6       to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);

4.6.7       to knowingly transmit any data, send or upload to the Service any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any telecommunications device, computer software or hardware;

4.6.8       in a manner which, in Supplier’s opinion (in its sole discretion), is likely to have a detrimental effect on the quality of the Services or any other service that Supplier may provide to its other customers;

4.6.9       in a manner which puts an excessive load on the Service or adversely affects the service that Supplier provides to its other customers or which it reasonably considers outside normal business use.

4.7       The Customer agrees:

4.7.1       not to reproduce, duplicate or copy any part of the Services;

4.7.2       not to access without authority, interfere with, damage or disrupt any part of the Services, any equipment or network through which the Services are provided, any software used in the provision of the Services or any equipment or network or software owned or used by any third party;

4.7.3       not to attempt to disable any security features or other technological functionality or features of the Services.

4.7.4       not to license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except as expressly agreed in writing by Supplier.

4.8       The Customer must notify Supplier immediately if it becomes aware of any unauthorised use of the Services.

4.9       The Customer agrees that:

4.9.1       if using the Freemium Plan, it shall not exceed the maximum of 4 Users;

4.9.2       if the Customer wishes to have more than 4 Users, it must upgrade to a paid Plan and pay the applicable Fees;

4.9.3       it shall provide the Supplier with contact details of its IT administrator or other authorized personnel upon request, and consents to the Supplier contacting such personnel in relation to the Customer’s use of the Software, including to determine who is using the product within the Customer’s organization; and

4.9.4       the Supplier may monitor the Customer’s use of the Software to ensure compliance with this Agreement and the Fair Usage Policy.

5.        SUBCONTRACTORS

Supplier may at any time engage a subcontractor to deliver the Services to the Customer.

6.        INTELLECTUAL PROPERTY

6.1       The Customer acknowledges that all Intellectual Property Rights in the Software belong and shall belong to the Supplier or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this agreement.

6.2       The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this agreement infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this agreement, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

6.3       If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 6.2 are conditional on the Customer:

6.3.1       as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

6.3.2       not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);

6.3.3       giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and

6.3.4       subject to the Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.

6.4       If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

6.4.1       procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this agreement;

6.4.2       modify the Software so that it ceases to be infringing;

6.4.3       replace the Software with non-infringing software; or

6.4.4       terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof.

6.5       Notwithstanding any other provision in this agreement, clause 6.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.

6.6       This clause 6 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 13.1.

6.7       The provisions of this Intellectual Property section will survive termination or expiry of the Agreement.

7.        FEES AND PAYMENT

7.1       In consideration for the provision and license of the Software, and the provision of the Services, Customer will, where using any Plan other than the Freemium Plan, pay Supplier in full (and without withholding) the Fees set out in this Agreement including the Order Form, on or before the dates specified in the Order Form. For the avoidance of doubt, no Fees shall be payable for the use of the Freemium Plan up to the maximum of 4 Users, nor during a Free Trial, subject to the Fair Usage Policy.

7.2       After a Free Trial expires the Customer must place an Order Form and set up payment with Supplier in order to continue using any Plan of the Software and the Services (other than the Freemium Plan), and in the event that Customer does not set up payment, Supplier may, in addition to any other rights it may have, without penalty to Supplier terminate this Agreement immediately upon notice to Customer.

7.3       All Fees payable by the Customer pursuant to this Agreement are exclusive of any value added or tax for which the Customer shall be additionally liable.

7.4       Unless otherwise specified, Customer will pay all invoices within 30 days of receipt. Payments will be made by direct bank transfer to the bank details stated in the invoice, unless the parties expressly agree otherwise.

7.5       Supplier may invoice for, and Customer will reimburse, reasonable, documented expenses incurred in connection with Customer authorised travel and costs (“Expenses”). Supplier will invoice for any Expenses on the same invoice in respect of the Services to which the Expenses relate.

7.6       If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s other remedies under this Agreement, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.7       Supplier reserves the right to increase fees in line with increases in the Consumer Prices Index or in line with an increase in any service costs or component of the fees caused by a third party (for example Microsoft) or a related service (for example Microsoft 365 Office Apps).

7.8       Time for payment shall be of the essence.

7.9       All payments payable to Supplier under this Agreement shall become due and payable immediately on termination of this Agreement, despite any other provision, and for the avoidance of doubt all work agreed in writing becomes due and payable in full immediately on termination, whether completed or not. This condition is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.

7.10    All amounts due under this Agreement shall be paid by the Customer to Supplier in full without any set-off, counterclaim, deduction, or withholding (other than any deduction or withholding of tax as required by law). Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to Supplier against any liability of Supplier to the Customer.

7.11    Charges relating to payment in a currency other than pounds Sterling will, if such method of payment is agreed to by Supplier, be borne by the Customer.

7.12    If the Customer wishes to dispute any invoice or part of an invoice for any reason, including performance, the Customer shall, at least seven (7) days from the receipt of the invoice, contact Supplier in writing setting out the nature of its dispute including:

7.12.1    the date and number of the disputed invoice;

7.12.2    the amount in dispute;

7.12.3    the reason for the dispute; and

7.12.4    supporting documentation, as appropriate.

7.13    If an invoice is not disputed as above then it will be deemed accepted by the Customer and the Customer accepts its obligations to pay Supplier the full amount due and on the invoice due date.

8.        DATA PROTECTION

8.1       All Personal Data that the Parties may use in connection with this Agreement shall be collected, processed, and held in accordance with the provisions of the Data Protection Legislation. Nothing in this Agreement shall relieve either Party of any obligations set out in the Data Protection Legislation or replace any obligations set out in the Data Protection Legislation. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause is in addition to and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.

8.2       The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the UK Data Protection Legislation).

8.3       Without prejudice to the generality of Clause 8.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Supplier for the duration and purposes of this Agreement as set out in the UK Data Protection Legislation.

8.4       Without prejudice to the generality of Clause 8.1, Supplier shall, in relation to any Personal Data processed in connection with the performance by Supplier of its obligations under this Agreement:

8.4.1       process that Personal Data only on the written instructions of the Customer, unless Supplier is required by the laws of another territory applicable to Supplier under a treaty with the UK to process (Applicable Laws). Where Supplier is bound under Applicable Laws for processing Personal Data, including any transfer of Personal Data outside the UK, the Customer shall promptly notify Supplier of this before Supplier performs the processing required under this agreement including under the Applicable Laws (unless those Applicable Laws prohibit the Customer from so notifying Supplier);

8.4.2       not transfer any Personal Data outside of the United Kingdom or the European Economic Area unless one or more of the following conditions are fulfilled:

8.4.2.1             such transfer is to a country or territory that has been deemed to provide an adequate level of protection for Personal Data by the UK Government pursuant to Section 17A of the Data Protection Act 2018 or by the European Commission pursuant to Article 45 of the UK GDPR or EU GDPR (as applicable);

8.4.2.2             appropriate safeguards are in place in accordance with Section 18A of the Data Protection Act 2018 or Article 46 of the UK GDPR or EU GDPR (as applicable), which may include but are not limited to:

8.4.2.2.1     binding corporate rules;

8.4.2.2.2     standard data protection clauses adopted by the UK Government, the Information Commissioner or the European Commission; or

8.4.2.2.3     an approved code of conduct or certification mechanism;

8.4.2.3             the transfer is made pursuant to binding contracts between the Supplier and the third party that incorporate standard data protection clauses adopted by the UK Government, the Information Commissioner or the European Commission designed to protect Personal Data;

8.4.2.4             the transfer is to a third party (such as Microsoft Corporation or its affiliates) which maintains or adheres to a recognized compliance framework which substantially implements the requirements of the Data Protection Legislation for the protection of Personal Data, such as Binding Corporate Rules, the EU-US Data Privacy Framework and UK Extension, the Swiss-US Data Privacy Framework, or other applicable frameworks as recognized by the relevant authorities;

8.4.2.5             the Data Subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers due to the absence of an adequacy decision and appropriate safeguards; or

8.4.2.6             the transfer is necessary for one of the other derogations or exceptions from the general prohibition on transfers of Personal Data outside the UK as set out in Section 18B of the Data Protection Act 2018 or Article 49 of the UK GDPR or EU GDPR (as applicable).

8.4.3       assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments, and consultations with supervisory authorities or regulators;

8.4.4       notify the Customer without undue delay on becoming aware of a Personal Data breach;

8.4.5       at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by UK Data Protection Legislation to store the Personal Data; and

8.4.6       maintain complete and accurate records and information to demonstrate its compliance with this Clause 8.

8.5       Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing or transfer of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or unlawful transfer, or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability, and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

8.6       The Customer consents to Supplier appointing third-party processors of Personal Data under this agreement. Supplier confirms that it will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this agreement.

8.7       In the event of any loss or damage to Personal Data, the Customer’s sole and exclusive remedy against Supplier will be for Supplier to use reasonable commercial endeavours to restore the lost or damaged Personal Data from the latest back-up of such Personal Data maintained by Supplier. Supplier will not be responsible for any loss, destruction, alteration or disclosure of Personal Data caused by any third party.

8.8       Supplier may, at any time on not less than 30 days’ notice, revise this Data Protection clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment as an Annex to this agreement).

8.9       The Customer warrants that it will comply with all relevant laws and regulations relating to Data Protection Laws whether local, national or international, including and for the avoidance of doubt, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations (EC Directive) 2003. The Customer agrees to indemnify the Supplier against all liabilities, claims, demands, actions, costs, damages or loss arising out of any breach of this clause by the Customer and for any non-compliance with any Data Protection Laws and, where applicable, compensate Supplier as required by Law.

8.10      The Customer acknowledges and agrees that:

8.10.1    it is responsible for obtaining all necessary consents and providing all necessary information to its Users regarding the processing of their Personal Data by the Supplier in connection with this Agreement;

8.10.2    it authorizes the Supplier to collect and process contact details of its IT administrators or other authorized personnel for the purpose of administering the Customer’s account and ensuring compliance with this Agreement; and

8.10.3    it shall indemnify the Supplier against all liabilities, claims, demands, actions, costs, damages or loss arising out of any breach of this clause by the Customer.

9.        TERM AND TERMINATION

9.1       Unless terminated earlier in accordance with its terms or extended by a written and signed amendment, this Agreement begins on the Effective Date and will continue for successive one year periods unless terminated by either party giving three months’ prior notice in writing (the “Term”).

9.2       In addition to any other rights to terminate at law or as expressly provided in the Agreement, either party may terminate the Agreement, in whole or in part, immediately (or on such date that is set out in the notice of termination) upon written notice if the other party: (i) commits a material breach of any provision of the Agreement that is not capable of being remedied, or if capable of being remedied, fails to remedy such material breach within 30 days following receipt of a written notice specifying the nature of the breach; or (ii) is affected by an insolvency or adjudication of bankruptcy, the filing of a voluntary petition in bankruptcy, the making of an assignment for the benefit of creditors, any substantial part of a party’s assets coming under the jurisdiction of a receiver, administrator, liquidator, trustee or similar officer in an insolvency proceeding authorised by law or if proceedings are instituted against the other party for winding up or reorganisation or other relief under any insolvency law. For the purposes of this clause, “insolvency” means either the party’s liabilities exceed its assets, each fairly stated; or the party’s inability to pay its business obligations in the regular course of business.

9.3       In addition to any other rights to terminate under this Agreement, the Supplier may terminate the Customer’s access to the Freemium Plan immediately upon notice to the Customer if:

9.3.1       the Customer exceeds the maximum number of 4 Users for the Freemium Plan;

9.3.2       the Supplier determines, in its sole discretion, that the costs of delivering the service have risen materially, significantly, or uncontrollably;

9.3.3       the Customer’s account has been inactive for an extended period of time, as determined by the Supplier in its sole discretion; or

9.3.4       the Customer is in breach of any term of this Agreement or the Fair Usage Policy.

10.     SUSPENSION

10.1    Without affecting any other right or remedy available to it, Supplier may, in its sole discretion, disable the Customer’s and/or any User’s access to the Services and/or restrict or block any traffic to or from the Customer immediately and without liability to the Customer if:

10.1.1    Supplier reasonably believes that the Customer or any User is in breach of this Agreement;

10.1.2    if the Customer or any User use of the Service presents a security risk to any other person;

10.1.3    if Supplier reasonably believes that suspending the Service is necessary in order to protect the Service, Supplier, or any other User of Supplier’s services; or

10.1.4    if required to do so by any order or request of government or other competent authority or if required by law or regulation;

10.1.5    if the Customer fails to make any payment required by the Supplier relating to the Fees due for the provision of the Service.

11.     CONFIDENTIALITY

11.1       Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination or expiry of this Agreement, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 2.

11.2       Each party may disclose the other party’s confidential information:

11.2.1    to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11; and

11.2.2    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3       No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

11.4       No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.    EXPORT

12.1    Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

12.2    The Customer shall not use the Software for any purpose prohibited by applicable law.

13.    LIMITATION OF LIABILITY

13.1    Except as expressly stated in clause 13.2:

13.1.1    the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

13.1.1.1           special damage even if the Supplier was aware of the circumstances in which such special damage could arise;

13.1.1.2           loss of profits;

13.1.1.3           loss of anticipated savings;

13.1.1.4           loss of business opportunity;

13.1.1.5           loss of goodwill;

13.1.1.6           loss or corruption of data;

13.1.1.7           wasted expenditure,

provided that this clause 13.1.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 13.1.2 or any other claims for direct financial loss that are not excluded by any of categories 13.1.1.1 to 13.1.1.6 inclusive of this clause 13.1.1; and

13.1.2    the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this agreement or any collateral contract, shall in no circumstances exceed a sum equal to the Fees over the immediately preceding 12 month period.

13.2    The exclusions in clause 14.4 and clause 13.1 shall apply to the fullest extent permissible at law, but neither party excludes liability for:

13.2.1    death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;

13.2.2    fraud or fraudulent misrepresentation; or

13.2.3    any other liability which may not be excluded by law.

13.3    All dates supplied by the Supplier for the delivery of the Software or the provision of Services shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

13.4    All references to “the Supplier” in this clause 13 shall, for the purposes of this clause and clause 20.4 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 20.4.

13.5    The Supplier is reliant on the proper operation of Microsoft 365 software, and will not be responsible or liable to the Customer for any faults or problems with, or failures in, the Software or Services, caused by Microsoft 365 software.

13.6    The Supplier will not be responsible or liable to the Customer for any faults or problems with, or failures in, the Software or Services, caused by action or inaction of Customer, in particular by Customer’s IT team.

14.    REPRESENTATIONS AND WARRANTIES

14.1    Each party represents and warrants that: (i) it has the power, capacity and authority to enter into and carry out its obligations under the Agreement; and (ii) the Agreement will be executed by its duly authorised representative(s) and, once executed, will constitute its legal, valid and binding obligations.

14.2    The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.

14.3    The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

14.4    All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

15.    Non-Solicitation and Non-Competition

15.1    The Customer shall not, without the prior written consent of Supplier, at any time from the date of this Agreement to the expiry of 12 months after the termination of this Agreement, solicit or entice away from Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or sub-contractor of Supplier in the provision of the Services.

15.2    The Customer shall not, during the Term of this Agreement and for a period of 12 months following its termination or expiry, directly or indirectly develop, market, sell, license, distribute or otherwise make available to any third party any software, service, application, add-in, or product that is substantially similar to, or competes with, the Software or Services provided by the Supplier under this Agreement. If the Customer is found to be in breach of this clause (in the Supplier’s opinion), the Supplier shall have the right, in addition to any other remedies available to it under this Agreement or at law, to immediately suspend or terminate the provision of the Software and Services to the Customer in accordance with clause 10.1 without liability to the Customer. For the avoidance of doubt, the Customer’s breach of this clause shall constitute a material breach of this Agreement that is not capable of remedy for the purposes of clause 9.2.

15.3    The Customer warrants that it is not, and shall ensure that none of its Affiliates or Users are, a direct or indirect competitor (“Competitor”) of the Supplier. For the purposes of this clause, a “Competitor” means any person or entity that develops, markets, sells, licenses, distributes or otherwise makes available software, services, applications, add-ins or products that are substantially similar to, or compete with, the Software or Services. The Customer shall immediately notify the Supplier if it becomes, or any of its Affiliates or Users becomes, a Competitor during the Term. In the event that: (i) the Customer or any of its Affiliates or Users is determined by the Supplier (in its sole discretion) to be a Competitor; or (ii) the Customer is in breach of this clause 15.3, the Supplier shall have the right, in addition to any other remedies available to it under this Agreement or at law, to immediately suspend or terminate the provision of the Software and Services to the Customer without notice and without liability to the Customer. For the avoidance of doubt, a breach of this clause shall constitute a material breach of this Agreement that is not capable of remedy for the purposes of clause 9.2.

16.    NOTICES

All notices under the Agreement will be in writing (which includes email), in English and deemed to have been given on: (i) the second business day after posting when sent by registered or other form of next day certified post, postage paid; (ii) at the time the notice is left at the address when delivered by hand; or (iii) if sent by email, only on acknowledgement of receipt, such acknowledgement not being an automated message, in all cases provided it is sent to the nominated person at the address or email address for the relevant party set out on the signature page of the Agreement. A party may change its address by notice in accordance with this clause. This clause will not entitle either party to serve any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution by email.

17.    FORCE MAJEURE

Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.

18.    WAIVER

18.1    A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

18.2    A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

19.    NO PARTNERSHIP OR AGENCY

19.1    Nothing in this agreement 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.

19.2    Each party confirms it is acting on its own behalf and not for the benefit of any other person.

20.    MISCELLANEOUS

20.1    The parties may only amend or vary the Agreement, or waive any right or remedy under the Agreement, in writing signed by a duly authorised representative of each party. The parties intend each provision of the Agreement to be distinct and severable. If any provision of the Agreement is found to be unenforceable, the enforceability of the remaining provisions will not be affected.

20.2    The Agreement may not be assigned or otherwise transferred, in whole or in part, by either party without the prior written consent of the other party provided, however, upon notice to Supplier, Customer may assign or novate the Agreement in whole or in part to an Affiliate or in connection with the sale or transfer of all or a substantial portion of Customer business, whether by merger, reorganisation, acquisition, sale or otherwise.

20.3    The Supplier may make general reference to the fact that to the fact that Customer is one of its customers in its marketing materials.

20.4    A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

20.5    The Agreement contains the entire agreement between the parties in relation to its subject matter and supersedes all prior representations and understandings, whether oral or written.

20.6    This Agreement shall be governed by the laws of England. Any dispute between the Parties relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

20.7    The Supplier may, in its sole discretion, update the Fair Usage Policy from time to time by posting a new version on its website or by notifying the Customer through the Software. The Customer’s continued use of the Software after such notification constitutes acceptance of the updated Fair Usage Policy.

20.8    The Supplier may delete any Inactive Account and all Customer Data associated with it without prior notice or liability to the Customer. The Customer shall be solely responsible for backing up any Customer Data that it wishes to retain.

SCHEDULE 1 – SERVICE LEVEL AGREEMENT

1. SERVICE LEVELS AND AVAILABILITY

1.1       Availability: “Availability” means the ability of Users to access and use the core functionality of the Software. The Software shall be deemed “available” when it is accessible and operational for Users in all material respects.

1.2       The Supplier shall use commercially reasonable efforts to make the Software available 24 hours a day, 7 days a week, except for:

1.2.1       Scheduled Maintenance (as defined in paragraph 2 below);

1.2.2       Emergency Maintenance (as defined in paragraph 2 below);

1.2.3       Any unavailability caused by circumstances beyond the Supplier’s reasonable control, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, internet service provider failures or delays, third-party hosting provider failures or delays, or the unavailability of Microsoft 365;

1.2.4       Any unavailability caused by the Customer’s or User’s equipment, software, network connections, or other technology;

1.2.5       Customer’s or any User’s use of the Software in a manner that violates this Agreement; or

1.2.6       Suspension or termination of Customer’s right to use the Software in accordance with the terms of this Agreement.

1.3       The Supplier commits to a Service Level of making the Software available for 99% or more of the time in any calendar month (the “Service Level Target”).

1.4       Availability shall be measured and calculated by the Supplier in its sole discretion, and the Supplier’s records and data shall be the sole basis for all availability calculations.

2. MAINTENANCE

2.1       Scheduled Maintenance: The Supplier may perform scheduled maintenance on the Software, during which time the Software may be unavailable. The Supplier shall use commercially reasonable efforts to provide at least twenty-four (24) hours’ advance notice of scheduled maintenance and to perform scheduled maintenance outside of Normal Business Hours where reasonably practicable.

2.2       Emergency Maintenance: The Supplier may perform emergency maintenance on the Software at any time, during which time the Software may be unavailable. The Supplier shall use commercially reasonable efforts to provide advance notice of emergency maintenance, where practicable.

2.3       The time during which the Software is unavailable due to Scheduled Maintenance or Emergency Maintenance shall be considered as ‘available’ in calculating the Availability percentage.

3. SERVICE LEVEL CREDITS

3.1       In the event that the Software in any calendar month is available less than the Service Level Target, and such failure is not excused under this Agreement, Service Level Credits will be credited to the Customer as follows:

3.2       To receive Service Level Credits, Customer must submit a claim to the Supplier in writing within thirty (30) days after the end of the calendar month in which the Software failed to meet the Service Level Target. The claim must include:

3.2.1       the words “SLA Credit Request” in the subject line;

3.2.2       the dates and times of each unavailability incident that Customer is claiming;

3.2.3       any affected User names; and

3.2.4       any relevant logs or other evidence that document the claimed incidents of unavailability, where available.

3.3       If the Supplier confirms that the Service Level Target was not met in the applicable calendar month, the Supplier will issue the Service Level Credits to Customer within one billing cycle following the month in which Customer’s request is confirmed by the Supplier.

3.4       Service Level Credits may only be used by Customer against Fees for the next calendar month and must be utilized within that time frame. Service Level Credits are non-transferable and non-refundable, and will not be carried over beyond the next calendar month.

3.5       The Supplier’s maximum liability for Service Level Credits in any calendar month shall not exceed 6% of the component of monthly Fees payable for the Software for that month.

4. EXCLUSIVITY OF REMEDY

4.1       Service Level Credits are the Customer’s sole and exclusive remedy for any performance or availability issues for the Software under the Agreement and this SLA.

4.2       Service Level Credits shall not be available and shall not apply to any performance or availability issues:

4.2.1       due to factors outside the Supplier’s reasonable control;

4.2.2       that resulted from Customer’s or any User’s equipment or third-party equipment, software, technology or systems;

4.2.3       that resulted from actions or inactions of Customer or any User;

4.2.4       during Free Trials;

4.2.5       that resulted from Customer’s or any User’s unauthorized access to the Software or use of the Software in breach of this Agreement; or

4.2.6       during periods of suspension of the Services in accordance with the terms of this Agreement.

4.3       The Supplier shall have no obligation to issue Service Level Credits for any claim that is received by the Supplier more than thirty (30) days after the end of the calendar month in which the Software failed to meet the Service Level Target.