Advanced Business Software and Solutions Limited

End User Licence Agreement (EULA)

This EULA is entered into between Advanced Business Software and Solutions Limited whose registered address is Ditton Park, Riding Court Road, Datchet, Berkshire SL3 9LL (“We”/“Us”/”Our”) and the End User who has procured any part of the Software directly through a Reseller authorised by Us to act as Our agent (“You/”Your””). The Effective Date of this EULA shall be Effective Date as defined below. The parties agree to the following:

1. DEFINITIONS.

“Additional Items” means additional modules, Licence Metrics provided after the initial purchase of Software.

“Anti-Bribery Laws” : any and all applicable statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws which relate to the anti-bribery and/or anti- corruption, including the Bribery Act 2010 (“Bribery Act”) and any subsequent amendment or statute replacing the Bribery Act.

“Certified Operating Environment” or “COE” means hardware, operating system, middleware, database products and other software on which We or Our licensors, as applicable, indicate a Software will operate.

“Contract” means the document executed between You and the Reseller which and describes order-specific information, such as description of products or services ordered, Licence Metrics, fees, and milestones.

“Customer Data”: any data and information that You or Your users provide, generate, transfer or make available to Us under this EULA, whether printed, electronic, or in some other format.

“Delivery Date” means (i) for Software that is loaded on hardware, delivery is when any medium containing substantially all of the Software is provided at the Location and a licence key, if applicable, has been provided by Us or the Reseller; (ii) for physical delivery of Software without hardware, delivery is the date on which the Software, as contained in a physical media format, is delivered to the common carrier for shipment to You; (iii) for Software electronic delivery, the date on which the Software and licence keys are made available to You.

“Documentation”: the user instructions, release notes, manuals and on-line help files in the form generally made available by Us or the Reseller, regarding the use of the applicable Software, as updated by Us from time to time.

“Effective Date” means the date the End User and the Reseller sign the Contract.

“Equipment” means hardware on which the Software is installed or Your server for the computer configuration situated at the Location. The Equipment may not include a virtual server environment unless noted in the Contract.

“Group” means any subsidiary, any holding company and any subsidiary of any holding company as defined in s1159 Companies Act 2006;

“Initial Term”: A period identified in the Contract where Software Support Services are provided by Us or the Reseller to You from the Delivery Date.

“Intellectual Property”: any and all intellectual property rights, recognised in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation inventions, technology, patents rights (including patent applications and disclosures), copyrights, trade secrets, trademarks, service marks, trade dress, database rights, methodologies, procedures, processes, know-how, tools, utilities, techniques, various concepts, ideas, methods, models, templates, software, source code, algorithms, the generalised features of the structure, sequence and organisation of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, which We have created, acquired or otherwise has rights in, and may, in connection with the performance of services hereunder, create, employ, provide, modify, create, acquire or otherwise obtain rights in.

“Licence Metrics”: the limitation on the usage of each element of the Software as designated and/or defined in the applicable Contract by a term such as the number of concurrent users, named users, CPUs and the like. Common Licence Metrics for Us with definitions are as follows:

• Concurrent Users: the total number of users that can access the system at any one time.
• Named Users: total number of users that can use the system based on licences provided to named individuals.
• Site: No limits on usage by user numbers. Limited to a single instance of the Software unless otherwise agreed.
• Server: licence is granted per server.
• PC: licence is granted per personal computer or terminal.
• Per Item/Invoice/Transaction: Charges are made per item/invoice/transaction, to reflect volume metrics – often on an “X per annum” basis. A pre-agreed number of items/invoices/transactions set out in the Contract and paid in advance.

“Licensed Companies” means the company or companies agreed in writing by Us or our authorised representative, each of which is a subsidiary (as such term is defined in s1159 Companies Act 2006) of Yours unless otherwise agreed in writing.

“Licensed Materials”: Software, training materials, and/or any other deliverables agreed in writing.

“Location”: As specified in the Contract.

“Our Group” means Advanced Computer Software Group Limited (CRN 05965280) and any majority owned subsidiary thereof.

“Our Software”: means the software products legally owned by Us in machine readable object code (not source code), the Documentation for such product, and any updates thereto. “Our Software” excludes Third Party Products.

“Reseller” means MRI Software Limited.

“Software”: Our Software products and Third Party Product software that You procure from Us, via the Reseller which we have the right to sub-licence.

“Support Services” or “Support”: the technical assistance for the Software, and provision of updates if and when available. Support is provided subject to the terms of Our Support Policies (as may be amended by Us from time to time and read in context of Our Support Partner’s own policies) in effect at the time the Support services are provided. A current version of such Support Policies are available on request (“Support Policies”).

“Support Partner”: means any third party duly appointed by the Reseller to distribute the Software which is also appointed by Us as a partner for Support in relation to Our Software.

“Term” means the term of the Software licence and the associated Support Services specified in the Contract.

“Third Party EULA”: the end user licence agreement (if any) which governs Your use of or access to the applicable Third Party Product. This may take the form of a document which is published by the Third Party supplier and accompanies the Third Party Product that You procure from Us, or any terms determined by the relevant third party supplier on which We are entitled to sub-license the Third Party Product to You. Common Third Party EULAs may be found at https://www.oneadvanced.com/collateral-terms/.

“Third Party Product”: software in object code form, database, service or content, including Documentation, updates and enhancements thereto if any, owned by an entity other than Us.

2. DELIVERY, INSTALLATION AND ACCEPTANCE.

2.1 Software Delivery. We or the Reseller will deliver to You access to a machine-readable copy of the Software, or the relevant licence keys as applicable. We reserve the right to make partial deliveries and to make the Software and Documentation available in electronic format. If You require physical delivery, shipment of Software is F.O.B Origin and includes one production copy. Delivery Dates are good faith estimates.

2.2 Acceptance. Acceptance of the Software including any Third Party Product shall be deemed to take place on the Delivery Date.

3. LIMITED LICENCE.

3.1 Licence Grant. Subject to Us being paid the applicable fees and the terms and conditions of this EULA, We grant to You and (if applicable and where noted in writing and the relevant additional fees paid, the Licensed Companies), for the Term either:

3.1.1 a personal, non-transferable, non-assignable, non-exclusive, indivisible, licence to run and use the Software listed in the Contract solely on the COE, for Your own business operations as enabled by the licence keys (if applicable), and use the Documentation in connection with such use of the Software. You may use the Software only on the Equipment at the Location. Use on different equipment or at a different location, including those operated by an authorised third party outsourcing/hosting provider, requires Our prior written consent; or

3.1.2 the right to access and use the Software on a subscription basis, solely for Your internal business purposes, as documented in the Contract.

3.2 Licence Metrics. All fees are based on the Licence Metrics purchased and the Term. Use of the Software is expressly limited to the maximum number of Licence Metrics and the use rights and limitations as set forth in the Contract. Additional Licence Metrics and associated Support Services must be purchased under an additional Contract at the pricing and under the licensing model in effect at the time the additional licences and services are added, in the event actual use exceeds the licensed quantities. Support Services related to Additional Items shall be prorated so as to coincide with the remainder of the then-current Term. Unauthorised usage in excess of the agreed Licence Metrics is deemed a material breach of this EULA.

3.3 Licensed Companies. You may authorise use of the Software by a Licensed Company, provided (i) such Licensed Company agrees in writing to abide by the terms of this EULA, and (ii) the combined use of the Software or Support Services hereunder by You and Licensed Companies shall in no event exceed the Licence Metrics authorised under the Contract. For the avoidance of doubt, use by a Licensed Company under this provision DOES NOT grant such company a licence to use the Software in their own right, but only by virtue of their relationship with You, Our licensee. On termination of this EULA or a Contract between You and the Reseller, all rights granted to Licensed Companies shall also terminate. You hereby guarantee the performance of all terms and obligations of this EULA by any such Licensed Company and agree to comply with any injunction arising out of any breach by a Licensed Company of this EULA. Any breach of this EULA by any Licensed Company shall be deemed to be a breach by You, and We will enforce the applicable terms and obligations of this EULA against You in such circumstances.

3.4 Copies. You may make one copy of the Software solely for back-up and archival purposes. For the avoidance of doubt, back-up and archival purposes under this clause 3.4 do not include use of such copy for standby, failure, disaster recovery, load sharing, testing or similar deployment on a separate machine from the Equipment. You will need to procure additional Licence Metrics from Us or the Reseller to facilitate such activities.

3.5 Third Party Products. Where We or the Reseller supply Third Party Products to You (as noted in the Contract) or Our Software incorporates Third Party Products, You undertake that You shall use the Third Party Products solely in conjunction with Our Software and You shall have no broader use rights with respect to the Third Party Products than You have to Our Software. You acknowledge and accept that it may be necessary for Us to impose certain additional obligations on you in respect of such Third Party Products You procure from Us, therefore, wherever the Contract details Third Party Products being supplied under this EULA, You agree to observe the Third Party EULA in addition to the terms of this EULA.

3.6 Where We do not supply any Third Party Product, and Third Party Product(s) is/are required for deployment of Our Software or otherwise are used in connection with Our Software (i.e. You source Third Party Product(s) elsewhere), it is Your responsibility to source and maintain such Third Party Product independently of Us. Further, You shall supply to Us or the Reseller and keep updated any details of the Third Party Product licences such as limits or restrictions, where such limits or restrictions will materially affect any Support Services provided by Us or the Reseller. In these circumstances, We accept no liability whatsoever in respect of the Third Party Product and You shall fully indemnify Us against all claims, demands, actions, costs, expenses (including but not limited to full legal costs and disbursements on a solicitor and client basis), losses and damages arising from or incurred by reason of any infringement or alleged infringement of any intellectual property right by Our use of Third Party Product in connection with this EULA.

4. SUPPORT.

4.1 Requirement for On-going Grant of Licence. The ongoing grant of licence and Your use of the Software is dependent on You procuring ongoing Support from Us or the Reseller or (where applicable) an authorised Support Partner, under separate terms and conditions for that service. All licences in Your possession must be supported, and where tiered Support is offered, all licences must be supported at the same tier. Support starts on the Delivery Date and continues during the Term. In the event that Your Support is not renewed or is otherwise terminated, Your licence to the Software shall automatically terminate.

4.2 Exclusions. We are under no obligation to provide Support to You (via an authorised partner, Reseller or otherwise) with respect to: (i) Software that has been altered or modified by anyone other than Us or Our licensors; (ii) a release/version for which Support has been discontinued unless expressly agreed in writing; (iii) Software used other than in accordance with the Documentation or other than on a COE; (iv) discrepancies that do not significantly impair or affect the operation of the Software; (v) any systems or programs not supplied by Us.

5. CONFIDENTIALITY.

5.1 Defined. By virtue of this EULA, the parties may be exposed to or be provided with certain confidential and proprietary information of the other party or third parties, including but not limited to information designated as confidential in writing or information which ought to be in good faith considered confidential and proprietary to the disclosing party (“Confidential Information”). Confidential Information of Ours and/or Our licensors includes but is not limited to the terms and conditions (but not the existence) of this EULA, including without limitation all trade secrets, software, source code, database, licence keys, information about the Software or Support Services, object code, specifications, documentation, business plans, customer lists and customer-related information, financial information, proposals, budgets as well as results of testing and benchmarking of the Licensed Materials, product roadmap, data and other information of Ours and Our licensors relating to or embodied therein.

5.2 Non-Disclosure. Each party will protect the other party’s Confidential Information from unauthorised dissemination and use the same degree of care that each such party uses to protect its own confidential information, but in no event less than a reasonable amount of care. Neither party will use Confidential Information of the other party for purposes other than those necessary to directly further the purposes of this EULA. Neither party will disclose to third parties Confidential Information without prior written consent of the other party. Information shall not be considered Confidential Information to the extent, but only to the extent, that the receiving party can establish that such information (i) is or becomes generally known or available to the public through no fault of the receiving party; (ii) was lawfully in the receiving party’s possession before receipt from the disclosing party without a duty of confidentiality; (iii) is lawfully obtained from a third party who has the right to make such disclosure on a non-confidential basis; or (iv) has been independently developed by one party without reference to any Confidential Information of the other. We or Our affiliates (which for the avoidance of doubt includes Our Group) may use and distribute, for any lawful purposes outside of this EULA, Customer Data and any other data that You provide to Us, provided always that such data is aggregated anonymous, and de-identified. We and Our licensors or suppliers may monitor the usage, performance and operation of the Licensed Materials using electronic, remote and other means to access Your systems and without notice to You.

5.3 Required Disclosure. The receiving party may disclose Confidential Information of the disclosing party if it is required by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure.

5.4 Data Protection. Each party shall comply with any applicable law relating to the processing, privacy, and use of personal data as applicable to You, Us, the Software and/or Services, including:

5.4.1 in the United Kingdom:

• a) the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, SI 2003/2426, and any laws or regulations implementing Directive 95/46/EC (Data Protection Directive) or Directive 2002/58/EC (ePrivacy Directive); and/or
• b) the General Data Protection Regulation (EU) 2016/679 (GDPR), and/or any corresponding or equivalent national laws or regulations; or

5.4.2 any judicial or administrative interpretation of any of the above, any guidance, guidelines, codes of practice, approved codes of conduct or approved certification mechanisms issued by any relevant supervisory authority.

The parties acknowledge that, for the purposes of this EULA and to the extent that We are required to process personal data supplied by or on behalf of You (“Your Personal Data”), You shall be the data controller and We shall be the data processor (as defined in the Act).

5.4.3 To the extent that We process any of Your Personal Data, We warrant that at all times We will:

• a) only process Your Personal Data strictly as required in the proper performance of this EULA or otherwise in accordance with Your instructions from time to time (including promptly complying with any request from You requiring Us to amend, transfer or delete all or any of Your Personal Data);
• b) not process any of Your Personal Data for any purpose other than outlined in clause 5.4.3 a;;
• c) not subcontract any processing of Your Personal Data outside our Group without Your prior written authorisation;
• d) not do or procure anything to be done that does or may cause You to breach any data protection law;
• e) ensure that all appropriate technical and organisational measures are at all times taken against the unauthorised or unlawful processing of any or all of Your Personal Data and against the accidental loss or destruction of, or damage to, any or all of Your Personal Data;
• f) save for transfer or transmission to any company within Our Group in performance of this Agreement, not transfer or transmit any of Your Personal Data outside of the European Economic Area without Your prior written consent;
• g) ensure that only those of Our personnel that have a need to access Your Personal Data for the purposes of the proper performance of this EULA are granted access to such data and that such personnel comply with the provisions of this clause 5.4;
• h) promptly notify You if We become aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any of Your Personal Data.

5.4.4 You acknowledge that We are reliant on You for direction as to the extent to which We are entitled to use and process Your Personal Data. Consequently, We will not be liable for any loss or damage You may suffer in connection with any claim arising from any action or omission by Us, to the extent that such action or omission resulted directly from Your instructions.

6. LIMITED RIGHTS AND OWNERSHIP.

6.1 Reservation of Rights. All rights not expressly granted in this EULA are reserved by Us and Our licensors. You acknowledge that: (i) all Licensed Materials are licensed and not sold; (ii) You acquire only the right to use the Licensed Materials and We and Our licensors shall retain sole and exclusive ownership of and all rights, title, and interest in the Licensed Materials, including without limitation (whether developed by Us, You or a third party) (a) Intellectual Property embodied or associated with the Licensed Materials, (b) bespoke modifications, deliverables and work product associated with the Licensed Materials, and (c) all copies and derivative works thereof; and (iii) the Licensed Materials, including the source and object codes, logic and structure, constitute valuable trade secrets of Ours and Our licensors. You agree to secure and protect the Licensed Materials consistent with the maintenance of Our and Our licensors’ rights therein, as set forth in this EULA. You agree to execute such further instruments, and take such further actions as We may reasonably request, at Our expense, to apply for, register, perfect, confirm, and protect Our rights.

6.2 Restrictions. You shall not Yourself, or through any affiliate, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Licensed Materials; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Licensed Materials in whole or in part, for competitive purposes or otherwise, except as and only to the extent expressly permitted by law; (iii) allow access to, provide, divulge or make available the Licensed Materials to any user other than those who have licences to access and all such users must be Your employees or individual contractors; (iv) allow use of the Licensed Materials by others such as Your affiliates or outsourcers without Our prior written consent; (v) write or develop any derivative works based upon the Licensed Materials; (vi) modify, adapt, translate or otherwise make any changes to the Licensed Materials or any part thereof; (vii) use the Licensed Materials to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis; (viii) disclose or publish, without Our prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Licensed Materials; (ix) otherwise use or copy the Licensed Materials except as expressly permitted herein; (x) remove from any Licensed Materials identification, patent, copyright, trademark or other notices or circumvent or disable any security devices functionality or features; or (xi) except as expressly permitted by this EULA, use the Licensed Materials for hosting purposes.

6.3 Licence Grant by You. You grant to Us a non-exclusive, royalty free licence to use equipment, software, Customer Data or Your other materials solely for the purpose of performing Our obligations under this EULA.

6.4 Enforcement. You shall (i) ensure that all users of Licensed Materials comply with the terms and conditions of this EULA, (ii) promptly notify Us of any actual or suspected violation thereof and (iii) cooperate with Us with respect to investigation and enforcement of this EULA. Any breach of this EULA by a user or users of the Licensed Materials shall be deemed to be a breach by You.

6.5 No Copying. Except as expressly but only to the extent permitted by law, You may not copy or reproduce the Licensed Materials in any manner. We and Our licensors’ proprietary notices, including without limitation patents, copyrights and trademarks notices, as well as disclaimer notices must be reproduced on any such authorised copies.

7. INDEMNIFICATION.

7.1 Your Indemnification. We will defend or settle, at Our option and expense, any action, suit or proceeding brought against You that Our Software infringes a third party’s patent or copyright, in the United Kingdom, Channel Islands, Isle of Man and all territories in the EU (“Claim”). We will indemnify You against all damages and costs finally awarded or those costs and damages agreed to in a monetary settlement of such action, which are attributable exclusively to such Claim, provided that You: (i) promptly give Us written notice of the Claim; (ii) give Us sole control of the defence and settlement of the Claim; (iii) provide Us, at Our expense, with all available information and assistance relating to the Claim and cooperate with Us and Our counsel; (iv) do not compromise or settle such Claim; and (v) are not in material breach of any agreement with Us. We have no obligation to the extent any Claim results from: (a) You or Your users having modified Our Software, procured a modification from an unauthorised source, or used a release other than a current unaltered release of Our Software, if such an infringement would have been avoided by the use of a current unaltered release of Our Software, (b) Third Party Products unless such products have been supplied directly by Us (in which case the indemnity (if any) offered within the provisions of the relevant Third Party EULA shall apply), or (c) the combination, operation or use of Our Software with software or data not provided by Us. If it is adjudicated that an infringement of Our Software by itself and used in accordance with this EULA infringes any copyright, or patent in the United Kingdom, Channel Islands, Isle of Man and all territories in the EU, We shall, at Our option: (I) procure for You the right to continue using Our Software; or (II) replace or modify the same so it becomes non-infringing or (iii) either party shall be entitled to terminate this EULA upon written notice to the other party. THIS CLAUSE 8 STATES OUR ENTIRE OBLIGATION TO YOU AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF INFRINGEMENT.

7.2 Our Indemnification. You shall defend Us against any claim, demand, suit, or proceeding made or brought against Us and Our affiliates (which for the avoidance of doubt includes Our Group), Our employees, consultants, contractors and other suppliers (collectively, “Indemnified Party”) (A) by Your users or (B) by a third party arising out of or related to (i) the Customer Data, (ii) Your or Your users’ use of the Licensed Materials in violation of this EULA, or infringing or misappropriating the rights of a third party or violating applicable law, (iii) Your or Your users’ use of Third Party Product in violation of the relevant EULA (whether procured via Us or not), or infringing or misappropriating the rights of a third party or violating applicable law, (iv) Your or Your users use or misuse of the Licensed Materials or Your or Your users use or misuse of the Customer Data (including, without limitation, accessing, providing access, using or distributing the Customer Data), (v) information transmitted by You or Your users using the Support Services; or (vi) breach by You or Your users of applicable laws including without limitation any privacy or security rules, and shall indemnify each Indemnified Party for any damages finally awarded against, and for reasonable legal fees incurred by, the Indemnified Party in connection with any such claim that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action; provided that the Indemnified Party (a) promptly gives You written notice of the claim, (b) gives You sole control of the defence and settlement of the claim (provided that You may not settle or defend any Claim unless it unconditionally releases the Indemnified Party of all liability), and (c) provides You all reasonable assistance, at Your cost.

8. DISCLAIMERS AND LIMITATION OF LIABILITY.

8.1 The warranties set out in this EULA are in lieu of, and We, Our licensors and suppliers expressly disclaim to the maximum extent permitted by law, all other warranties, express or implied, oral or written, including, without limitation, (i) any warranty that the Licensed Materials or the Support is error-free, secure, accurate or reliable or will operate without interruption or that all errors will be corrected or will comply with any law, rule or regulation (ii) any and all implied warranties of quality, fitness for a particular purpose, title and non-infringement and (iii) any and all implied warranties arising from statute, course of dealing, course of performance or usage of trade. No advice, statement or information given by Us, Our affiliates, Our Group, contractors or employees shall create or change any warranty provided herein. You acknowledge that the Licensed Materials have not been prepared to your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions described in the Documentation meet your requirements. You assume all responsibility for the selection of the Software and/or other products and services provided hereunder to achieve your intended results.

8.2 Our Software. Without prejudice to the disclaimers in Clause 8.1, We undertake that, provided it is operated in accordance with Our instructions, Our Software will materially perform in accordance with the Documentation.

We are not responsible for any claimed breach of any warranty set forth in this clause caused by: (i) modifications made to Our Software by anyone other than Us; (ii) the combination, operation or use of Our Software with any items that are not part of the COE or the Equipment; (iii) Your failure to use any Software updates that We made available to You; (iv) Our adherence to Your specifications or instructions; or (v) You deviating from Our Software operating procedures described in the Documentation.

8.3 Third Party Products. We warrant that We are an authorised distributor of any Third Party Products supplied to You by Us. We make no warranty with respect to any Third Party Products. Your sole remedy with respect to Third Party Products shall be pursuant to the original licensor’s warranty, if any, to Us, to the extent permitted by the original licensor. Third Party Products are made available on an “AS IS, AS AVAILABLE” basis, without warranties or conditions of any kind, whether oral or written, express or implied.

8.4 Interfaces. Where We provide any Interface from Our Software to the products or services of a third party, those products and services are not part of the Software, We make no warranties or representations of any kind with respect to those products and services. Only the Interface developed by Us shall form part of Our Software. You assume all risk of loss arising from the use of those products and services.

8.5 You assume sole responsibility and liability for any users’ compliance with the terms and conditions of this EULA. We shall have no liability for any claims, losses or damages arising out of or in connection with Your or any of Your users’ use of the Licensed Materials, any third-party products, services, software or web sites that are accessed via links from within the Support Services.

8.6 Nothing in this EULA shall in any way exclude or limit Our liability for death or personal injury caused by negligence, or liability for fraudulent misrepresentation, or for any other liability which by law it is not possible to exclude or limit.

8.7 Our liability for the loss or damage to tangible property whether or not the same are under warranty shall be limited in accordance with clause 8.8 below.

8.8 Subject to clause 8.1, Our total liability for direct losses in contract, tort, misrepresentation, breach of statutory duty or otherwise in connection with this EULA or the provision of the Licensed Materials and/or any Support Services for any and all events and/or claims arising shall be limited to the total aggregate value of Licensed Material and Support Services supplied by Us or £10,000 (ten thousand pounds), whichever is the lesser sum.

8.9 In no event will We be liable to You in contract, tort, misrepresentation or otherwise, for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, nor for any direct or indirect loss of profit, loss of anticipated profits, loss of revenue, loss of anticipated revenue, loss of savings or anticipated savings, loss of business opportunity, increases in cost of working whether anticipated or not, loss or corruption of data, loss of use or loss of operating time and any costs and expenses associated therewith, loss or damage to Software or data which it contains during repair or upgrade whether or not the same are under warranty, the cost of purchasing elsewhere, depletion of goodwill or reputation or otherwise which arise out of or in connection with this EULA and whether or not foreseeable or made known to Us.

8.10 If You supply any hardware or equipment or Third Party Product and such items impair Your system, cause it to fail, not to operate or not to operate properly in conjunction with Your system, We have no liability hereunder for any such impairment, failure, non-operation or improper operation.

8.11 We will use reasonable endeavours to ensure that any services agreed in writing between You and Us are supplied promptly in accordance with any dates as agreed by the parties having regard to the availability of personnel but any delivery dates or times quoted for delivery, commencement or completion of any part of the services or deliverables will be estimates only and time will not be of the essence.

8.12 The parties have considered the exclusions and limitations of liability in this EULA in the context of all the circumstances of the transaction to which this EULA relates (including the parties’ respective insurance cover) and all the factors referred to in Schedule 2 of the Unfair Contracts Terms Act 1977. The parties consider that such exclusions and limitations of liability are fair and reasonable and that, but for such exclusions and limitations, the parties would not have entered into this EULA. For the purposes of the Unfair Contracts Terms Act 1977 each party acknowledges and agrees that every provision of this EULA has been the subject of negotiations between the parties, even if the words used in any provision of this EULA have been used by a party in other contractual arrangements and/or in standard form contract documentation used by that party.

9. TERM AND TERMINATION.

9.1 Term. Save where otherwise terminated earlier as provided hereunder, the term of this EULA shall commence on the Delivery Date and shall continue in full force and effect until the expiry of the Term. For the avoidance of doubt, the Term set forth above applies to all Licence Metrics purchased by You as of the first Delivery Date, plus the relevant Delivery Date of any Additional Items purchased during the Term on a pro-rata basis from the date of purchase.

9.2 Termination. Either party may terminate the EULA immediately upon written notice: (i) in the event that the other party commits a non-remediable material breach of this EULA, or if the other party fails to remedy any remediable material breach or provide a written plan of remedy acceptable to the non-breaching party within 30 days of being notified in writing of such breach; or (ii) if the other party becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or notice has been received of a pending appointment of or the appointment of a receiver, manager, administrator or administrative receiver over all or any part of its undertaking, assets or income, intends to pass or has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order, or has ceased or threatened to cease to trade.

9.3 Following expiry of the Term or termination of the EULA (for whatever reason), You shall certify that You have returned or destroyed all copies of the applicable Licensed Materials, and Confidential Information of Ours and acknowledge that Your rights to use the same are relinquished.

10. GENERAL PROVISIONS.

10.1 Force Majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under this EULA arising from any cause beyond its control, including without limitation strike, lock-out, labour dispute, act of God, war, riot, civil commotion, malicious damage (including virus/hacking attacks or other intentional malicious acts of third parties), compliance with a law or governmental order, rule, regulation or direction, accident, third party interference, actions or omissions of telecommunication providers, delay or failure of any supplier, sub-contractor or carrier, fire, flood and storm. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate this EULA forthwith by prior written notice without prejudice to the accrued rights of either party.

10.2 Assignment. We may assign, sub-contract or otherwise transfer any of Our rights or obligations under this EULA without Your consent. You may only assign, sub-contract or otherwise transfer any of Your rights or obligations with Our prior written consent.

10.3 Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Licensed Materials. You agree that such export laws govern your use of the Licensed Materials (including technical data), and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, program, and/or materials resulting from Support Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical or biological weapons proliferation, or development of missile technology.

10.4 Compliance. During the term of this EULA and for a period of one year following its termination or expiration, You shall maintain and make available to Us records sufficient to permit Us or an independent auditor retained by Us to verify, upon ten (10) days’ written notice, Your full compliance with the terms and requirements of this EULA. You shall (A) provide any assistance reasonably requested by Us or Our designee in conducting any such audit, including installing and operating audit software, (B) make requested personnel, records, and information available to Us or Our designee, and (C) in all cases, provide such assistance, personnel, records, systems access and information in an expeditious manner to facilitate the timely completion of such compliance verification. Audits shall be performed during regular business hours. If the audit reveals any noncompliance, You shall reimburse Us for the reasonable costs and expenses of such verification process (including, but not limited to the fees of an independent auditor) incurred by Us, and You shall promptly remedy any such noncompliance, including without limitation through the payment of any and all fees owed to Us during the period of noncompliance; provided, however, that the obligations under this subclause do not constitute a waiver of Our termination rights. Additionally, We may at any time, without notice, during the term of this EULA access Your system to assess compliance with this EULA. You acknowledge that the Software and Support Services may include a licence manager component to track usage of the Software and/or Support Services and agree not to impede, disable or otherwise undermine such licence manager’s operation.

10.5 Notices. Any notice required to be given to Us pursuant to this EULA shall unless otherwise stated in it, be in writing, sent to Us marked for the attention of the Group Legal Department. For the purpose of this clause 11.5, the expression “writing” or “written” shall be deemed NOT to include email communications.

10.6 Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

10.7 Invalidity. If any provision of this EULA shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

10.8 Survival. The termination of this EULA in accordance with clause 10 or its expiry shall not prejudice or affect any rights or liabilities which accrued or thereafter shall accrue to either party, any rights or remedies a party may be entitled to hereunder or at law nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on after such termination.

10.9 No Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

10.10 Entire Agreement. This EULA constitutes the parties’ entire agreement relating to its subject matter. Each party acknowledges that in entering into this EULA, it has not relied on any representation, undertaking, promise or statement whether oral or in writing which is not expressly set out in this EULA. This EULA cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the parties relating to its subject matter as well as any prior contractual agreements between the parties.

10.11 Variation. No modification to this EULA will be binding unless in writing and includes a signature by an authorised representative of each party. All pre-printed or standard terms of any of Your purchase order or other business processing document shall have no effect.

10.12 Third Party Rights. The Contracts (Rights of Third Parties) Act 1999 is excluded, by the agreement of the parties to this EULA, from applying to this EULA to the maximum extent permitted by law. No term of this EULA is enforceable by any person who is not a party to it, whether in accordance with such Act or otherwise. This clause shall prevail in the event of any conflict between it and anything else in this EULA. Notwithstanding the above, the parties acknowledge that all rights and benefits afforded to Us under this EULA shall apply equally to the owner of the Third Party Product with respect to the Third Party Product You procure from Us, and such third party is an intended third party beneficiary of this EULA, with respect to the Third Party Product as applicable.

10.13 Anti-Bribery. Each party shall, and shall procure that its officers and employees shall;

• comply with all applicable Anti-Bribery Laws;
• 10.13.1 not offer, promise, give, request, agree to receive, receive or accept a bribe or financial or other advantage or commit any corrupt act; and
• 10.13.2 have and shall maintain in place throughout the term of this EULA its own policies and procedures, including adequate procedures under the Bribery Act, to ensure compliance with the Anti-Bribery Laws and will enforce them where appropriate.

10.14 Governing Law and Jurisdiction. The Agreement shall be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.

10.15 Order of Precedence. To the extent any provision of this EULA conflict with the provisions of a Third Party EULA, the Third Party EULA will take precedence but only in respect of the relevant Third Party Product. In the event of a conflict between the Contract and this EULA, the EULA shall prevail. The terms of Your purchase order or any other business processing document (if any) shall be superseded and excluded by the terms and conditions of this EULA and therefore have no effect.