BESPOKE E-LEARNING DEVELOPMENT AGREEMENT

Transcription

1 BESPOKE E-LEARNING DEVELOPMENT AGREEMENT DATED: 2015 POSTURITE and CUSTOMER 1 /DOC-Bespoke-Software-

2 Table of Contents 1. Interpretation Scope Bespoke software Bespoke Software and Delays Acceptance tests Acceptance Payment Ownership Software licence Use of the licensed software Posturite bespoke software: project management Customer's obligations Confidentiality and publicity Customer data Warranties Intellectual Property Rights Indemnity Limitation of liability Assignment and sub-contracting Duration Termination Waiver Rights and remedies Entire agreement Variation Severance Counterparts Third-party rights No partnership or agency Force majeure Notices Dispute resolution Governing law Jurisdiction...21 Schedule Schedule Schedule Schedule Schedule Business Requirement Specification...27 Technical Specification...28 Implementation Plan...29 Acceptance tests /DOC-Bespoke-Software-

3 THIS AGREEMENT is made on 2015 BETWEEN (1) Posturite Limited incorporated and registered in England and Wales with company number whose registered office is at The Mill, Station Road, Berwick, Polegate, East Sussex, BN26 6SZ (Posturite). (2) [FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (the Customer). AGREED TERMS 1. INTERPRETATION 1.1 The definitions and rules of interpretation in this clause apply in this agreement. Acceptance Certificate: the certificate to be signed by the Customer under clause Acceptance Date: the date on which the Acceptance Certificate is issued by the Customer under clause Acceptance Tests: the tests of the Bespoke Software to be agreed in accordance with clause 5.1. Bespoke Software: software programs (WorkRite) developed by Posturite specifically for the Customer to use and access under the terms of this agreement. Business Requirements Specification: the specification agreed between the Customer and Posturite which sets out the Customer's business requirements regarding the Bespoke Software, annexed to this agreement. Business: the business of the Customer as specified in Schedule 5. Commencement Date: the date on which this agreement becomes effective, as specified in Schedule 3. Completion Date: the estimated date specified in the Implementation Plan (which may be varied in accordance with clause 4) by which Posturite is to licence the Bespoke Software Ready for Service. Computer Hardware: the computers and other equipment to be used by the Customer in conjunction with the Bespoke Software, as specified in Schedule 2. Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party from whom the information originates and which has not come into the public domain during the term of this agreement in breach of any obligation of confidence, including information relating to the Licensed Software, or any of its constituent parts, the Products, the Professional Services, and the Source Code relating to the Licensed Software or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing. 3 /DOC-Bespoke-Software-

4 Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly. Customer Data: the data inputted by the Customer, Licensed Users, or Posturite on the Customer's behalf for the purpose of using the Licensed Software, Products and Professional Services or facilitating the Customer s use of the Licensed Software, Products and Professional Services. Customer Representative: a person duly authorised by the Customer to act on its behalf for the purposes of this agreement and identified to Posturite by written notice from the Customer. Delivery Date: the estimated delivery date specified in the Implementation Plan on which Posturite will grant access to a Product Module to the Customer. Fees: the fees payable in respect of the Products and Professional Services payable by the Customer to Posturite, as set out in Schedule 4. Go Live Date: the Acceptance Date or such other date as may be specified in Schedule 3. Good Industry Practice: the exercise of that degree of skill, care, prudence, efficiency, foresight and timeliness as would be expected from a leading company within the relevant industry or business sector. Implementation Plan: the time schedule and sequence of events for the performance of this agreement, annexed to this agreement, which may be varied in accordance with clause 4. Initial Term: the initial term for the supply of the Products commencing on the Go Live Date and continuing for a period of 3 years. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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, including the right to sue for and recover damages for past infringements. Licence: the licence granted to the Customer under clause 9. Licensed Software: the Bespoke Software and the Standard Software. (WorkRite). Licensed Users: the employees and agents of the Customer who use the Licensed Software, up to the maximum number specified in Schedule 5. Normal Working Hours: the hours 9.00am to 5.30pm GMT, Monday to Friday, except English Bank Holidays. Price: the aggregate price for the Bespoke Software (excluding the Products and any other Professional Services), as specified in Schedule 4. 4 /DOC-Bespoke-Software-

5 Product: the e-learning (WorkRite) together with associated maintenance support Products provided by Posturite to the Customer under this agreement, as more particularly described in the Product Specification annexed to this agreement. Product Module: any one of the individual software programs in the Bespoke Software. Professional Services: additional services that can include bespoke training, consultancy, assessments, managed services, configuration and bespoke training, as selected by the Customer and provided by Posturite to the Customer under the terms of this agreement. Project Manager: Posturite employee who has overall responsibility for the Work. Ready for Service: tested and having passed or deemed to have passed the Acceptance Tests under clause 5. Renewal Period: the period described in clause Source Code: the source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documentation. Standard Software: the software programs (WorkRite) proprietary to Posturite, listed in Schedule 1, which are to be provided to the Customer without modification as part of the Products. Support Staff: those officers, employees, agents or sub-contractors of Posturite connected with this agreement, including those individuals who perform Posturite's obligations under this agreement. Technical Specification: the specification of the Bespoke Software agreed between Posturite and the Customer to meet the Business Requirements Specification. VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction. Work: all the works, duties and obligations to be carried out by Posturite under this agreement. WorkRite: The name of the division within Posturite managing the e-learning software and services and the name given to the e-learning product. 1.2 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. 1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. 1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 5 /DOC-Bespoke-Software-

6 1.5 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment, and includes any subordinate legislation for the time being in force made under it. 1.6 Except where a contrary intention appears, a reference to a clause, schedule or annex is a reference to a clause of, or schedule or annex to, this agreement. 1.7 Clause and schedule headings do not affect the interpretation of this agreement. 1.8 Writing or written includes faxes and s, except where expressly provided to the contrary. 1.9 The schedules to this agreement, together with any documents referred to in them, form an integral part of this agreement and any reference to this agreement means this agreement together with the schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the parties If any conflict arises between the terms and conditions of this agreement and any provision of any schedule, the terms and conditions of the schedule shall prevail A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns. 2. SCOPE 2.1 Posturite shall develop the Bespoke Software (WorkRite) for the Customer in accordance with this agreement. 2.2 Posturite grants the Licence for the Licensed Software, and shall supply the Products and the Professional Services to the Customer in accordance with this agreement. 2.3 The development under clause 2.1 and the supply under clause 2.2, and Price are subject to the terms and conditions set out in this agreement. 3. BESPOKE SOFTWARE 3.1 Posturite shall develop the Bespoke Software (WorkRite) in accordance with the requirements of the Technical Specification. 3.2 Posturite agrees: to licence the Bespoke Software to the Customer to use and access; to carry out, in conjunction with the Customer, the Acceptance Tests; and to provide the Bespoke Software Ready for Service by the Completion Date, on the terms and conditions set out in this agreement. 3.3 If requested to do so by the Customer, Posturite shall provide any of the Professional Services in accordance with this agreement at the rates set out in Schedule Posturite shall comply with the Customer's reasonable instructions to ensure minimal disruption to the Business. 6 /DOC-Bespoke-Software-

7 4. BESPOKE SOFTWARE AND DELAYS 4.1 Posturite shall grant access to each WorkRite Product Module to the Customer by the applicable Delivery Date. 4.2 If the Bespoke Software is delayed at the request of the Customer, or because of his acts or omissions, the Implementation Plan shall be amended to take account of such delay in accordance with clause 4.5. If Posturite can demonstrate that the delay has resulted in an increase in cost to Posturite of carrying out its obligations under this agreement, Posturite may, at its sole discretion, notify the Customer that it wishes to increase the Price by an amount not exceeding any such demonstrable cost. Posturite may invoice the Customer for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs. 4.3 Posturite shall be given an extension of the timetable of any one or more of the stages in the Implementation Plan if one of more of the following events occurs: a force majeure event occurs as described in clause 29; a delay is caused in whole or in part by an action or omission of the Customer or its employees, agents or third-party contractors. 4.4 If Posturite is entitled to an extension of time under clause 4.3, it shall give written notice to the Customer not later than seven days after the beginning of the event. Such notice shall specify the event relied on and, in the case of a force majeure event under clause 29, shall estimate the probable extent of the delay. 4.5 The Customer Representative and the Project Manager shall use best endeavours to agree in writing, signed by both parties, what extension of time is reasonable in the circumstances. The Implementation Plan shall be deemed amended accordingly. 5. ACCEPTANCE TESTS 5.1 No later than 30 days from the Commencement Date, the Customer shall deliver proposed user acceptance criteria to Posturite and test data for the Acceptance Tests for the Bespoke Software. These criteria and data shall be such as are reasonably required to show that the Bespoke Software complies with the Technical Specification. Posturite shall provide the Customer with reasonable assistance to prepare such user acceptance criteria and test data at the Customer's request and at Posturite's standard rates then in force. 5.2 The Customer shall carry out the agreed Acceptance Tests for each Product Module within 10 days of its Delivery Date. 5.3 If any Product Module fails to pass the Acceptance Tests, the Customer shall, within 10 days from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). Posturite shall remedy the defects and/or deficiencies and the relevant test(s) shall be repeated within a reasonable time. 5.4 If any Product Module fails in some material respect to pass any repeated Acceptance Tests within four weeks from the date of its second submission to the Acceptance Tests, then the Customer may, by written notice to Posturite, choose at its sole discretion: 7 /DOC-Bespoke-Software-

8 5.4.1 to fix (without prejudice to the Customer's other rights and remedies) a new date for carrying out further tests on the Product Module on the same terms and conditions. If the Product Module fails such further tests then the Customer may request a repeat test under this clause 5.4.1; to permit Posturite to grant access to the Product Module subject to such change of acceptance criteria, amendment of the Business Requirements Specification and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable; or if Posturite is unable to correct material defects within a period of three months from the commencement of Acceptance Tests under clause 5.2, to reject the Bespoke Software as not being in conformity with the agreement, in which event the Customer may terminate this agreement. 6. ACCEPTANCE 6.1 The Standard Software (WorkRite) is deemed accepted at the Commencement Date without the need for tests. 6.2 Acceptance of the Bespoke Software shall be deemed to have occurred on whichever is the earliest of: the signing by the Customer of an Acceptance Certificate for the final Product Module to pass the Acceptance Tests; the expiry of 5 days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under clause 5.3; the expiry of 10 days after the Delivery Date of the final Product Module if the Acceptance Tests for that module have not started, or have not been pursued with due diligence; or the use of the Bespoke Software by the Customer in the normal course of the Business. 7. PAYMENT 7.1 Posturite shall submit invoices for the Price in accordance with Schedule 4. The Customer shall make payment of each invoice by the due date stated in that invoice or within 30 days of receipt of the invoice, whichever is later. 7.2 Posturite shall invoice the Customer on or before the Go Live Date for the Fees and at least 30 days prior to each anniversary of the Go Live Date for the Product Fees payable in respect of the next Renewal Period. 7.3 The Price, the Product Fees, Professional Services charges and all other payments stated in Schedule 4 are net of tax. The Customer shall, in addition, pay to Posturite the amount of any tax, duty or assessment, including any applicable VAT, which Posturite is obliged to pay and/or collect from the Customer in respect of any supply under the agreement (other than tax on Posturite's income). 7.4 If the Customer fails to make any payment due to Posturite under this agreement by the due date for payment, then, without limiting Posturite's remedies under clause 20, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc base rate from time to time. Such 8 /DOC-Bespoke-Software-

9 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. 7.5 Posturite may increase the annual charge at any anniversary of the Go Live Date after the first such anniversary by giving the Customer at least 90 days notice before such anniversary. 7.6 All invoices issued by Posturite under or in connection with this agreement shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced. 7.7 Reasonable out-of-pocket expenses may be charged by Posturite on production of reasonable evidence of expenditure to the Customer. For the duration of this agreement, and for a period of 3 years from termination or expiry of this agreement, Posturite shall maintain full and accurate records, in a form to be approved in writing by the Customer, of all charges, prices, costs and expenses associated with, and invoiced in respect of, the Bespoke Software, the Products and any Professional Services. 8. OWNERSHIP 8.1 The Intellectual Property Rights in the Licensed Software, the Products and Professional Services are, and shall remain, the property of Posturite, and Posturite reserves the right to grant a licence to use the Licensed Software to any other party or parties. 8.2 The Customer shall use best endeavours to prevent any infringement of Posturite's Intellectual Property Rights in the Licensed Software and shall promptly report to Posturite any such infringement that comes to its attention. In particular, the Customer shall: ensure that each Licensed User, before starting to use the Licensed Software, is made aware that the Licensed Software is proprietary to Posturite and that it may only be used in accordance with this agreement; implement suitable disciplinary procedures for employees who make improper use of the Licensed Software; and not permit third parties to have access to the Licensed Software without the prior written consent of Posturite, who may require that such third party executes a written confidentiality agreement before being given access to the Licensed Software. 9. SOFTWARE LICENCE 9.1 Posturite grants, subject to the terms of this agreement, the Customer the nonexclusive, non-transferable right (subject to clause 18): to access and use the Licensed Software for any purpose related to the Business (Licensed Purposes). 9.2 The Licensed Software may be used only by Licensed Users. 9.3 The Licence may, with the prior written consent of Posturite, be extended to additional Licensed Users, and Schedule 5 may be amended accordingly, provided that any appropriate additional fee is paid to Posturite before such use. 9 /DOC-Bespoke-Software-

10 10. USE OF THE LICENSED SOFTWARE 10.1 The Customer has no right to make, or authorise the making of, any copies of the Licensed Software The Customer shall not: sub-license, rent, lend, assign or transfer in any other way this agreement or the Licensed Software to any person without the prior written consent of Posturite; disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law; make adaptations or variations of the Licensed Software; or give access to the Licensed Software through any network of computers to users who are not employees or agents of the Customer. 11. POSTURITE BESPOKE SOFTWARE: PROJECT MANAGEMENT 11.1 No later than five days after the Commencement Date, the Customer shall notify Posturite of the name and qualifications of the person appointed as the Customer Representative Posturite shall appoint the Project Manager, who shall have the responsibility and commensurate authority for the overall progress of the Work and to whom all questions regarding this agreement can be referred. The name and qualifications of the appointed individual shall be notified in writing to the Customer Representative The Customer Representative shall co-operate with the Project Manager and shall attend meetings scheduled by the Project Manager at reasonable intervals to advise and assist Posturite on all matters relating to the Work The provision of employees, sub-contractors and agents of Posturite to carry out the Work shall be at the discretion of Posturite Posturite shall: take all reasonable steps to maintain continuity in relation to the staff providing the Support Staff team; and to the extent possible, give the Customer reasonable written notice of any proposed holiday or leave of absence to be taken by the Project Manager Posturite shall be responsible for the supervision, direction, control, wages, taxes, national insurance and benefits of the Support Staff. Posturite assumes full responsibility for their acts and omissions and acknowledges that they are not employees or agents of the Customer. 12. CUSTOMER'S OBLIGATIONS 12.1 During the term in which the Licensed Software is to be provided under clause 19.2, the Customer shall not, without Posturite's prior written approval, allow any person use of or access to any part of the Licensed Software. 10 /DOC-Bespoke-Software-

11 12.2 The Customer shall co-operate with Posturite in any manner reasonably required by Posturite in order to carry out the Work, including provision of information and data. 13. CONFIDENTIALITY AND PUBLICITY 13.1 Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (Permitted Purposes) In relation to the Customer's Confidential Information: Posturite shall treat as confidential all Confidential Information of the Customer supplied under this agreement. Posturite shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. Posturite shall ensure that its employees are aware of, and comply with, this clause 13; and Posturite may provide any sub-contractor authorised under clause 18 with such of the Customer's Confidential Information as it needs to know for the Permitted Purposes, provided that such sub-contractor has first entered into a written obligation of confidentiality owed to Posturite in terms similar to clause (which Posturite shall ensure is adhered to) In relation to Posturite's Confidential Information: the Customer shall treat as confidential all Confidential Information of Posturite contained or embodied in the Licensed Software, the Products, or Professional Services, or otherwise supplied to the Customer during the performance of this agreement; the Customer shall not, without the prior written consent of Posturite, divulge any part of Posturite's Confidential Information to any person other than: (a) (b) the Customer's Representative; and other employees of the Customer who need to know it for the Permitted Purposes; and the Customer undertakes to ensure that the persons mentioned in clause are made aware, before the disclosure of any part of Posturite's Confidential Information, that the same is confidential and that they owe a duty of confidence to the Customer in terms similar to clause (which the Customer shall ensure is adhered to) The restrictions imposed by clause 13.1, clause 13.2 and clause 13.3 shall not apply to the disclosure of any Confidential Information which: is now in or comes into the public domain otherwise than as a result of a breach of this clause 13; before any negotiations or discussions leading to this agreement was already known by the receiving party and was obtained or acquired in circumstances under which the receiving party was not bound by any form of confidentiality obligation; or 11 /DOC-Bespoke-Software-

12 is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the disclosing party to limit disclosure to such authorised person to the extent necessary) Each party shall notify the other party if any of its staff connected with this agreement becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the other party, at that other party's reasonable cost, in connection with any enforcement proceedings which that other party may elect to bring against any person This clause 13 shall remain in full force and effect, despite any termination of the Licence or this agreement. 14. CUSTOMER DATA 14.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data Posturite shall, in providing the Licensed Software, Products, and Professional Services, comply with its Information Security and Data Protection Policy relating to the privacy and security of the Customer Data available at [available on request], as such document may be amended from time to time by Posturite in its sole discretion If Posturite processes any personal data on the Customer s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Posturite shall be a data processor and in any such case: the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Licensed Users are located in order to carry out Posturite s obligations under this agreement; the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Posturite so that Posturite may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer's behalf; the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. 15. WARRANTIES 15.1 Posturite warrants and represents that: the Licensed Software (WorkRite) is proprietary to Posturite and that it has the right to license all UK Intellectual Property Rights in and to the Licensed Software and to provide the Products and Professional Services to the Customer; 12 /DOC-Bespoke-Software-

13 the Bespoke Software at the Acceptance Date, and for 6 months after that date, will perform in accordance with the Technical Specification; it will perform the Work within a reasonable time and in a reliable and professional manner, in conformity with Good Industry Practice, by a sufficient number of competent personnel with appropriate skills, qualifications and experience and has, and will at all times have, the ability and capacity to meet such requirements; and it is in compliance with, and will perform the Work in compliance with, all applicable law and regulations The sole remedy for breach of the warranty in clause is set out in clause The sole remedy for breach of the warranty under clause shall be correction of defects by Posturite within a reasonable time from notification by the Customer of the defect that constitutes such breach The warranties set out in clause 15.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Without limitation, Posturite specifically denies any implied or express representation that the Licensed Software will be fit: to operate in conjunction with any hardware items or software products other than with those that are identified as being compatible with the Licensed Software; or to operate uninterrupted or error-free Posturite does not warrant or guarantee that it will be able to rectify all defects Any improper use of the Licensed Software by, or on behalf of, the Customer shall render all Posturite's warranties and obligations under this agreement null and void Posturite shall not be obliged to rectify any particular defect if attempts to rectify such defect other than normal recovery or diagnostic procedures have been made by the Customer's personnel or third parties without the permission of Posturite Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign. 16. INTELLECTUAL PROPERTY RIGHTS INDEMNITY 16.1 Posturite shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (excluding any indirect or consequential losses, loss of profit or loss of reputation) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with use of the Licensed Software, provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Customer: 13 /DOC-Bespoke-Software-

14 as soon as reasonably practicable, gives written notice of the Claim to Posturite, specifying the nature of the Claim in reasonable detail; does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Posturite (such consent not to be unreasonably conditioned, withheld or delayed); gives Posturite 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 Posturite and its professional advisers to examine them and to take copies (at Posturite's expense) for the purpose of assessing the Claim; and subject to Posturite providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, takes such action as Posturite may reasonably request to avoid, dispute, compromise or defend the Claim Without prejudice to clause 15.6, Posturite shall not in any circumstances have any liability for any claim of infringement of Intellectual Property Rights: caused or contributed to by the Customer's use of the Licensed Software in combination with software not supplied or approved in writing by Posturite; based on use of any version of the Licensed Software other than the latest version supplied by Posturite, if such claim could have been avoided by the use of such supplied version; or where the claim for infringement arises in respect of a feature of the Licensed Software which was specified by the Customer in the Business Requirements Specification If use of the Licensed Software becomes, or in the opinion of qualified legal counsel is likely to become, the subject of any such claim, Posturite may: replace all or part of the Licensed Software with functionally equivalent software or documentation without any charge to the Customer; modify the Licensed Software as necessary to avoid such claim, provided that the Licensed Software functions in substantially the same way as the Licensed Software before modification; or procure for the Customer a licence from the relevant claimant to continue using the Licensed Software If: use of the Licensed Software is determined in a court of law to be infringing; or Posturite is advised by a barrister of at least ten years' call that use by the Customer of the Licensed Software in accordance with this agreement is likely to constitute infringement of a third party's rights; or if an injunction or similar order is granted in connection with a claim of the types referred to in clause 16.1 which prevents or restricts the use by the Customer of the Licensed Software in accordance with this agreement; 14 /DOC-Bespoke-Software-

15 and Posturite is unable, after best efforts, to procure for the Customer the right to continue using the Licensed Software or to provide the Customer with functionally equivalent non-infringing software, this agreement and the Licence will be terminated Nothing in this clause shall restrict or limit the Customer's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity. 17. LIMITATION OF LIABILITY 17.1 Neither party excludes or limits liability to the other party for: fraud or fraudulent misrepresentation; death or personal injury caused by negligence; a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or any matter for which it would be unlawful for the parties to exclude liability Subject to clause 17.1, Posturite shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for: any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; any loss or corruption (whether direct or indirect) of data or information; loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or any loss or liability (whether direct or indirect) under or in relation to any other contract Clause 17.2 shall not prevent claims, which fall within the scope of clause 17.4, for: direct financial loss that are not excluded under any of the categories set out in clause to clause ; or tangible property or physical damage Subject to clause 17.1, Posturite's total aggregate liability in contract, tort (including negligence and breach of statutory duty however arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement or any collateral contract shall: in respect of any cause of action related to the provision of the Products and Professional Services, shall be limited to the total Fees paid for by the Customer to Posturite during the 12 month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period 15 /DOC-Bespoke-Software-

16 before 12 months had elapsed from the Commencement Date, during that shorter period; and in respect of any other cause of action relating to this agreement (including any cause of action relating to the Bespoke Software), be limited to the amount of the Price Any dates quoted for delivery of the Work are approximate only, and the time of delivery is not of the essence. Posturite shall not be liable for any delay in delivery of the Work that is caused by an event, circumstance or cause within the scope of clause 29 or the Customer's failure to provide Posturite with adequate delivery instructions. 18. ASSIGNMENT AND SUB-CONTRACTING 18.1 The Customer shall not, without the prior written consent of Posturite, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement Posturite may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. 19. DURATION 19.1 This agreement shall, subject to clause 19.2, commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 20, until the Bespoke Software has been completed The Professional Services shall commence on the Go Live Date and shall continue for the Initial Term 19.3 The Licence and Professional Services shall commence on the Go Live Date and shall continue for the Initial Term and shall be automatically renewed for successive periods of 12 months (Renewal Period), unless: either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Term or 30 days before the end of any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or either party notifies the other party of termination, in accordance with any of the other provisions of clause TERMINATION 20.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement and/or the Products and Professional Services with immediate effect by giving written notice to the other party if: the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is 16 /DOC-Bespoke-Software-

17 remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement; the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause to clause (inclusive); the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or any warranty given in clause 15 is found to be untrue or misleading Either party may terminate this agreement in accordance with clause 29 or if there is any change of Control of the Customer or Posturite On termination of the Licence for any reason each party shall return and make no further use of any equipment, property, information and other items (and all copies of them) belonging to the other party This agreement shall automatically terminate on termination or expiry of the Licence, but expiry or any termination of this agreement (however caused) shall have no effect on the Licence. 17 /DOC-Bespoke-Software-

18 20.5 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination On termination of this agreement for any reason, Posturite shall promptly refund such portion of the Price or Fees (as the case may be) as relates to the period after expiry or termination on a pro rata basis; 20.9 On termination of this agreement for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to Posturite. 21. WAIVER No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. 22. RIGHTS AND REMEDIES Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law. 23. ENTIRE AGREEMENT 23.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement. 24. VARIATION No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 25. SEVERANCE 25.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to 18 /DOC-Bespoke-Software-

19 or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. 26. COUNTERPARTS 26.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. 27. THIRD-PARTY RIGHTS 27.1 No person other than a party to this agreement shall have any rights to enforce any term of this agreement 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. 28. NO PARTNERSHIP OR AGENCY 28.1 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 Each party confirms it is acting on its own behalf and not for the benefit of any other person. 29. FORCE MAJEURE 29.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 180 days, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party If termination occurs under 29.1, all sums paid to Posturite by the Customer under this agreement shall be refunded to the Customer, except that Posturite shall be entitled to payment on a quantum meruit basis for all work done before termination, provided that Posturite takes all reasonable steps to mitigate the amount due. 30. NOTICES 30.1 Any notice required to be given under this agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice as set out in Schedule 4 or as otherwise specified by the relevant party by notice in writing to each other party. 19 /DOC-Bespoke-Software-

20 30.2 Any notice shall be deemed to have been duly received: if delivered personally, when left at the address and for the contact referred to in this clause; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed A notice required to be given under this agreement shall not be validly given if sent by The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action. 31. DISPUTE RESOLUTION 31.1 Any dispute which may arise between the parties concerning this agreement shall be determined as provided in this clause For the purpose of this clause 31, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute Unless this agreement has already been terminated by the date of the notice of dispute, Posturite shall, in every case, continue with the Work with all due diligence regardless of the nature of the dispute and the Customer shall continue to make payments (excluding any disputed sums) in accordance with Schedule After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 31.4 shall be extendable by mutual agreement): within 10 days, the Project Manager and the Customer Representative shall meet to attempt to settle the dispute; if the Project Manager and the Customer Representative are unable to reach a settlement within 20 days from the date of service of the notice, the parties shall meet within the following 10 days to attempt to settle the dispute; and if no settlement results from the meeting specified in clause , for the following 28 days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties If no settlement is reached under clause 31.4: if the dispute is of a technical nature concerning the interpretation of the Business Requirements Specification or Technical Specification or any similar or related matter then such dispute shall be referred for arbitration. The arbitrator's decision shall (in the absence of clerical or manifest error) be final and binding on the parties and his or her fees for so acting shall be borne by the parties in equal shares unless he determines that the conduct of either party is such that such party should bear all of such fees; in the case of a dispute over purely legal issues, or where disposition of the legal issues would dispose of all other issues in dispute, the matter shall be brought 20 /DOC-Bespoke-Software-