GIDE INTERNATIONAL LIMITED. - and - [ PARTY 2] SOFTWARE SUPPLY AND SUPPORT AGREEMENT

Transcription

1 DATED GIDE INTERNATIONAL LIMITED - and - [ PARTY 2] SOFTWARE SUPPLY AND SUPPORT AGREEMENT Strana 1 z 21

2 CONTENTS Clause Page 1 INTERPRETATION 3 2 SUPPORTED SOFTWARE 6 3 THE SERVICES 7 4 ORDERS FOR OPTIONAL SERVICES 10 5 SUPPORT STAFF 10 6 FURTHER TERMS RELATING TO THE SERVICES 11 7 CHARGES 11 8 THE SUPPLIER S WARRANTIES AND LIMITS OF LIABILITY 13 9 INTELLECTUAL PROPERTY RIGHTS THE CUSTOMER S RESPONSIBILITIES MEETINGS NON-SOLICITATION RISK AND TITLE FORCE MAJEURE TERM TERMINATION CONSEQUENCES OF TERMINATION ASSIGNMENT AND SUB-CONTRACTING CONFIDENTIALITY AND PUBLICITY WAIVER SEVERABILITY AMENDMENTS THIRD PARTY RIGHTS NOTICES ENTIRE AGREEMENT GOVERNING LAW AND JURISDICTION 21 Strana 2 z 21

3 THIS SOFTWARE SUPPLY AND SUPPORT AGREEMENT is made the [ DAY] day of [ MONTH] & [ YEAR] BETWEEN: (1) GIDE INTERNATIONAL LIMITED, incorporated and registered in England and Wales with company number whose registered office is at 4th Floor, 33 Cavendish Square, London, England, W1G 0PW (the Supplier ); and (2) [ FULL COMPANY NAME], incorporated and registered in [ COUNTRY OF INCORPORATION] with company number [ NUMBER] whose registered office is at [ REGISTERED OFFICE ADDRESS] (the Customer ). BACKGROUND The Supplier has supplied and licensed certain software products to the Customer on an end user basis under the terms of the Licence (defined below) and has agreed to provide certain services including maintenance services, project services, business support services, support services and other ongoing support and other services for such Software (and other software products) on the terms set out in this Agreement. THE PARTIES agree as follows: 1 INTERPRETATION 1.1 The definitions and rules of interpretation in this clause apply in this Agreement and the schedules to it. Affiliate includes, in relation to either party, each and any subsidiary or holding company of that party and each and any subsidiary of a holding company of that party. Business Support Services the service more particularly described in Part 2 of Schedule 2 which is to be provided by the Supplier to the Customer pursuant to Clause 3.3. Critical Fault a reproducible fault which substantially hinders or prevents the Customer from using a material part of the functionality of the Supported Software Deliverables any Documentation, the Supported Software, documents, know-how or other works created or supplied by the Supplier (whether alone or jointly) in the course of providing the Services. Strana 3 z 21

4 Documentation the documentation provided by the Supplier for the Supported Software, in either printed text or machine readable form, including but not limited to the program specification and operations manual. Enhanced Support Service the support service to be provided by the Supplier to the Customer pursuant to Clause 3.6. Extended Functionality such additional or extended functionality as may be agreed in writing between the Supplier and the Customer from time to time. GIDE Renewal Pack part of the Updating Service, the purchase of which allows the Customer to receive free of charge Upgrade Releases and New Versions [ and the Services set out in Part [ ] of Schedule [ ]]. Implementation Services the service more particularly described in Part 1 of Schedule 2 which is to be provided by the Supplier to the Customer pursuant to Clause 3.2. Included Functionality the included functionality more particularly described in Schedule 1, which is to be supplied by the Supplier to the Customer for use by unrestricted users of the Supported Software. Intellectual Property Rights all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world. Licence the form of licence for the Software entered into between the parties on the same date as this Agreement. Maintenance Release a release of the Software which corrects faults. Manager the person appointed by the Customer from time to time in order to fulfil the role described in Clause Modification any Maintenance Release, Upgrade Release or New Version which is acquired by the Customer. New Version any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product. Non-Critical Fault any reproducible fault in the Software other than a Critical Fault. Strana 4 z 21

5 Optional Service any of the services listed in Part 5 of Schedule 2 and any other services that the Customer and the Supplier may from time to time agree shall be supplied to the Customer by the Supplier under the terms of this Agreement. Price List the price list set out in Schedule 4 detailing the charges payable for the Services under this Agreement, being (where the context so requires) each or any of the following: any charges for the Licence for the Supported Software; the charges for the Implementation Service; any charges for the Business Support Service; the charges for the Standard Support Service; the charges for the Updating Service; the charges for the Enhanced Support Service; and any charges agreed for Optional Services; in each case as the same may be amended from time to time in accordance with the provisions of Clause 7.8. Restricted User Functionality the restricted user functionality more particularly described in Schedule 1 which is to be supplied by the Supplier to the Customer for use by restricted users of the Supported Software. Services includes (as appropriate) the Project Service, the Standard Support Service, the Updating Service, the Enhanced Support Service, the Business Support Service and any Optional Services which are included within an order for Optional Services under Clause 4. Software has the same meaning as in the Licence. Standard Support Service the support service more particularly described in Part 3 of Schedule 2 which is to be provided by the Supplier to the Customer pursuant to Clause 3.4. Standard Support Hours 9.00 am to 5.00 pm Monday to Friday. Support Manager the person appointed by the Supplier from time to time in order to fulfil the role described in Clause 5. Strana 5 z 21

6 Support Staff those individuals who perform the Supplier s obligations under this Agreement including (where the context permits) the Support Manager. Supported Software has the meaning set out in Clause 2.1. Supporting Applications the software applications more particularly described in Schedule 1 which are to be supplied by the Supplier to the Customer. Updating Service the service to be supplied by the Supplier to the Customer pursuant to Clause 3.5. Upgrade Release a release of the Software which adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version. 1.2 The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this Agreement. 1.3 Unless the context otherwise so requires: references to the Supplier and the Customer include their permitted successors and assigns; references to statutory provisions include those statutory provisions as amended or re-enacted; and references to any gender include all genders. 1.4 In the event of any conflict between the terms and conditions of this Agreement and any provision of any schedule, the terms and conditions of this Agreement shall prevail. In the event of any conflict between this Agreement and the Licence, the terms of the Licence shall prevail. 1.5 Words in the singular include the plural and in the plural include the singular. 1.6 Holding company has the meaning given in section 1159 of the Companies Act Subsidiary has the meaning given in section 1159 of the Companies Act SUPPORTED SOFTWARE 2.1 The Supported Software is: the Software; any Modification which is acquired by the Customer (whether under the Licence, this Agreement or any other agreement between the Supplier and Strana 6 z 21

7 the Customer) during the course of the Licence and which accordingly becomes part of the software defined as the Software under the Licence; and any other software which the Supplier and Customer agree should be Supported Software for the purposes of this Agreement including the software listed in Schedule In relation to Maintenance Releases: as part of the Updating Service, the Supplier shall from time to time make Maintenance Releases available to the Customer without charge; and if the Customer fails to acquire and make such arrangements as are necessary in order to enable the Supplier to install a Maintenance Release within one month of the Supplier s notifying the Customer that such Maintenance Release is available for installation, the Supplier shall be entitled to terminate this Agreement by one months written notice to the Customer. 2.3 In relation to Upgrade Releases: If the Supplier releases an Upgrade Release and the Customer decides not to acquire and/or to enable the Supplier to install such Upgrade Release, that decision shall not give rise to any right to terminate this Agreement, nor shall it result in any adverse effect on the Services or the performance of the Supplier s obligations under this Agreement. 2.4 In relation to New Versions: If the Supplier releases a New Version and the Customer decides not to acquire and to enable the Supplier to install such New Version, that decision shall not give rise to any right to terminate this Agreement, nor shall it result in any adverse effect on the Services or the performance of the Supplier s obligations under this Agreement. However, if the Customer has not, within 12 months of the Supplier s having notified the Customer that a New Version is available, acquired and enabled the Supplier to install that New Version, the Supplier shall be entitled to terminate this Agreement by one months written notice to the Customer (given at any time after the expiry of the said period of 12 months). 3 THE SERVICES 3.1 The Supplier shall supply and the Customer shall take and pay for the following Services: the Implementation Service; Strana 7 z 21

8 3.1.2 the Business Support Service; the Standard Support Service; the Updating Service; the Enhanced Support Service; and such of the Optional Services as are included from time to time within an order for Optional Services agreed between the Supplier and the Customer pursuant to Clause In relation to the Implementation Service: the Implementation Service shall be provided during the Standard Support Hours and shall comprise: the project services comprising data source analysis, model creation and data integration the installation of the Supported Software; and the user supported software training such other Project Services (if any) as are more particularly defined in Part 1 of Schedule In relation to the Business Support Service: the Business Support Service shall be provided during the Standard Support Hours and shall comprise: the business user training in corporate finance, financial modelling, corporate restructuring and valuations; the business data support services comprising of business models improvement and the ongoing maintenance of such models, financial planning and reporting support using the Supported Software; and such other business support services as are more particularly defined in Part 2 of Schedule In relation to the Standard Support Services: the Standard Support Service shall be provided during the Standard Support Hours and shall comprise: Strana 8 z 21

9 the provision of remote help desk services; the remote administration of the calculation server; and such other support services (if any) as are more particularly defined in Part 3 of Schedule Where a Non-Critical Fault is to be corrected in a forthcoming Maintenance Release, then for a reasonable period prior to the issue of such Maintenance Release the Supplier shall be entitled to decline to provide assistance in respect of that Non-Critical Fault. 3.5 If and to the extent that a Customer does not elect to purchase the GIDE Renewal Pack, then in relation to the Updating Service: the Supplier shall issue Modifications of the Software as and when required in the absolute discretion of the Supplier; the Updating Service shall include the supply to the Customer of all revisions to the Documentation which are necessary in order to reflect any Modification acquired by the Customer; for the avoidance of doubt, the cost of the Updating Service is included in the charges payable for the Standard Support Service, but excludes any sum payable by the Customer in respect of an Upgrade Release, the licence of a New Version or GIDE Renewal Pack Updating services are more particularly defined in Part 4 of Schedule The Enhanced Support Service offers support at times other than the Standard Service Hours or on site instead of remotely in case of Standard Support Service as may be agreed in writing between the Supplier and the Customer from time to time. 3.7 The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Services, provided such changes do not have a material adverse effect on the Customer s business operations. 3.8 The Supplier shall have no obligation to provide the Services where faults arise from: misuse, incorrect use of or damage to the Software; or failure to maintain the necessary environmental conditions for use of the Software; or Strana 9 z 21

10 3.8.3 any fault in the Customer s equipment and/or any software not provided by the Supplier; or relocation or reinstallation of the Software by any person other than the Supplier or a person acting under the Supplier s instructions; or any breach of the Customer s obligations under this Agreement. 4 ORDERS FOR OPTIONAL SERVICES 4.1 The Customer may from time to time request the Supplier to supply Optional Services of the type set out in Part 5 of Schedule 2 at the rates set out in Clause 7.2. The Supplier shall use its reasonable endeavours to comply with the Customer s request, but the Customer acknowledges that the Supplier s ability to supply the Optional Services shall depend on the availability of appropriate resources at the time in question. 4.2 Where the Supplier agrees to provide Optional Services, such agreement shall be embodied in an order for Optional Services. Each order for Optional Services shall be made under, and shall incorporate, the terms of this Agreement. 5 SUPPORT STAFF 5.1 The Supplier shall appoint a Support Manager, who shall be responsible for the coordination of all matters relating to the Services. All communications, documentation and materials relating to this Agreement shall be sent as appropriate by the Support Manager to the Manager. Each party shall notify the other in writing promptly in the event of any proposed change to those appointments. 5.2 In addition to its Support Manager, the Supplier shall provide sufficient Support Staff to fulfil its obligations under the terms of this Agreement. The Support Staff shall be suitably trained and experienced in the support and maintenance of the Supported Software. 5.3 In the absence of the Support Manager or of any other member of the Support Staff for any reason, the Supplier shall supply a replacement person who: is appropriately trained and competent to fulfil the role required of him; and has undergone a suitable period of familiarisation with the Services to enable him to perform the functions of the person whom he is replacing. Strana 10 z 21

11 6 FURTHER TERMS RELATING TO THE SERVICES 6.1 The Supplier s obligation to provide on-site services shall extend to the sites listed in Schedule The Supplier shall ensure that, while on the Customer s premises, the Support Manager, the Support Staff and all other persons who enter such premises with the authority of the Supplier for the purpose of, or in connection with, this Agreement or the provision of the Services adhere to the Customer s security procedures and health and safety regulations, as from time to time notified to the Supplier or otherwise brought to the notice of the Supplier or such persons. The Customer shall be entitled to remove or to refuse admission to any person who is, or has been, in material breach of such procedures and regulations. However, the Supplier shall incur no liability for any delay in performing or failure to perform its obligations under this Agreement as a result of compliance with the terms of this Clause CHARGES 7.1 In consideration of the Services (excluding for this purpose any Optional Services), the Customer shall pay the charges set out in the Price List. Such charges shall be paid by the Customer to the Supplier within 14 days of the date of the Supplier s invoice. 7.2 Charges for any New Version or Optional Service supplied by the Supplier to the Customer shall be determined in accordance with Part 5 of Schedule 2 and agreed in writing prior to performance or supply by the Supplier, and shall be charged and invoiced to the Customer by the Supplier (and paid by the Customer) following acceptance by the Supplier of the Customer s written order for such New Version or such Optional Service (as the case may be). 7.3 The Customer shall pay all costs (at the Supplier s then prevailing rates) and expenses incurred by the Supplier for work carried out by the Supplier in connection with any fault which is not covered by this Agreement. 7.4 The Customer shall reimburse any travel or subsistence expenses incurred by the Supplier where such expenses are incurred wholly and exclusively for the purpose of providing Enhanced Support Service as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts. 7.5 If the Customer fails to pay any amount payable by it under this Agreement, the Supplier shall be entitled, but not obliged, to charge the Customer interest on the Strana 11 z 21

12 overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of The Royal Bank of Scotland PLC. Such interest shall accrue on a daily basis and be compounded quarterly. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act The Customer acknowledges and agrees that those charges set out in Schedule 4 that are quoted in terms of "per manhour", "per manday" and/or "per session" are calculated on the assumption that the Customer will utilise in full the number of manhours, mandays and/or sessions (as the case may be) set out in the column headed "Quantity" in Schedule 4 during the time periods set out in the column headed "Expiration" in Schedule 4. In the event that the Customer does not utilise in full the relevant number of manhours, mandays and/or sessions (as the case may be) during the relevant time periods then it shall not be entitled to any rebate or discount based on the shortfall in the number of manhours, mandays and/or sessions (as the case may be) actually used. In the event that the Customer exceeds the relevant number of manhours, mandays and/or sessions (as the case may be) during the relevant time periods then to Customer shall pay to the Supplier an amount equal to the excess based upon the same rates are set out in the column headed "List Price (EUR)" in Schedule The Customer further acknowledges and agrees that the charges per number of user licences set out in the Price List are based on the assumption that the Customer will utilise in full the number of user licences which it has agreed to pay for. In the event that the Customer does not uitilise in full the relevant number of user licences at any time during the term of this Agreement then it shall not be entitled to any rebate or discount based on the shortfall in the number of user licences actually used. 7.8 All amounts payable under this Agreement shall be exclusive of value added tax, GST, foreign withdrawal tax and or any other similar tax (if any) which shall be paid at the rate and in the manner for the time being prescribed by law. 7.9 The Supplier shall be entitled to increase the charges set out in the Price List as from each anniversary of the date of this Agreement provided always that the percentage increase in charges shall not exceed ten per cent (3%) in any calendar year during the term of this Agreement. Any such increase shall be notified to the Customer at least three months prior to such anniversary. Strana 12 z 21

13 8 THE SUPPLIER S WARRANTIES AND LIMITS OF LIABILITY 8.1 The Supplier represents and warrants to the Customer that: the Services will be performed: in accordance with all applicable laws and regulations; and with all reasonable skill and care; to the best of its knowledge and belief, the Deliverables will not infringe Intellectual Property Rights of any third party; and at the date of this Agreement, the Supplier has obtained and will maintain for the duration of this Agreement all permissions, licences and consents necessary for the Supplier to perform the Services. 8.2 If, during the term of this Agreement, the Supplier receives written notice from the Customer of any breach by the Supplier of the representation and warranties contained in Clause 8.1, the Supplier shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate this Agreement immediately on written notice to the Customer and repay to the Customer all sums which the Customer has paid to the Supplier under this Agreement during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. The Customer shall provide all information reasonably necessary to enable the Supplier to comply with its obligations under Clause 8.2. This clause sets out the Customer s sole remedy and the Supplier s entire liability for breach of Clause No representation or warranty is given by the Supplier that all faults will be fixed or will be fixed within a specified period of time. 8.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose and the use of reasonable skill and care. 8.5 Subject to Clause 8.8, the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same arise in contract, tort (including negligence), breach of statutory duty or otherwise howsoever, arising under or in connection with this Licence for: Strana 13 z 21

14 8.5.1 loss of profits, sales, business or revenue; business interruption; loss of anticipated savings; loss of business opportunity; loss of goodwill; loss or corruption of data; or any indirect or consequential loss or damage. 8.6 The total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to seventy five percent (75%) of the charges payable by the Customer in the year in which the liability arises. 8.7 The Customer agrees that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than pursuant to the express terms of this Agreement. 8.8 The limitations and exclusions in Clause 8.5 and 8.6 shall apply to the fullest extent permissible at law but the Supplier does not exclude liability for: death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents; or fraud or fraudulent misrepresentation; or breach of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or any other liability which cannot be excluded by law. 9 INTELLECTUAL PROPERTY RIGHTS 9.1 All Intellectual Property Rights in the Deliverables shall belong to the Supplier and the Customer shall have no rights in respect of any of the Deliverables except as expressly granted under this Agreement. The Customer shall do or procure to be done all such further acts and things and execute or procure the execution of all such other Strana 14 z 21

15 documents as the Supplier may from time to time require for the purpose of giving the Supplier the full benefit of the provisions of Clause 9.1. The Customer agrees and acknowledges that the Supplier shall be entitled at all times to supply the Supported Software, any Modification and/or all or any of the Services to any other person, firm or company. 9.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the use or possession of any of the Deliverables (or any part of them) infringes the Intellectual Property Rights of a third party ( Infringement Claim ) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Infringement Claim. 9.3 Clause 9.2 is conditional on: the Customer notifying the Supplier in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice; the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of the Supplier, which consent shall not be unreasonably withheld or delayed; and the Supplier having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving the Supplier all reasonable assistance in connection with those negotiations and such litigation at the Supplier s request and expense. 9.4 If any Infringement Claim is made, or in the Supplier s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense: procure for the Customer the right to continue using, developing, modifying or maintaining the Deliverables (or any part of them) in accordance with the terms of this Agreement; or modify the Deliverables so that they cease to be infringing; or replace the Deliverables with non-infringing works; or Strana 15 z 21

16 9.4.4 terminate this Agreement immediately on notice to the Customer and repay to the Customer all sums which the Customer has paid to the Supplier under this Agreement during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. 10 THE CUSTOMER S RESPONSIBILITIES 10.1 Without prejudice to Clause 6.2, the Customer shall provide the Supplier, the Support Manager, the Support Staff and all other persons duly authorised by the Supplier with full, safe and uninterrupted access (including (without limitation) remote access if possible) to the Customer s premises, and the sites listed in Schedule 3 and the Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours. Where the Services are to be performed at any of the Customer s premises and sites listed in Schedule 3, the Customer shall provide adequate working space and office (including telephone) facilities for use by the Supplier s personnel and take reasonable care to ensure their safety The Customer shall ensure that appropriate environmental conditions are maintained for the Supported Software and shall take all reasonable steps to ensure that the Supported Software is operated in a proper manner by the Customer s employees The Customer shall nominate a Manager to be available to liaise with, and respond to queries from, the Support Manager (for example, as to the resolution of conflicting priorities between two or more items of support or maintenance) The Customer shall: co-operate with the Supplier in performing the Services and provide any assistance or information as may reasonably be required by the Supplier; report faults promptly to the Supplier; and keep full back-up copies of all of its data The Customer shall indemnify the Supplier against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Supplier as a result of the Customer s breach of this Agreement or any negligent or wrongful act of the Customer, its officers, employees, contractors or agents. Strana 16 z 21

17 11 MEETINGS For the duration of this Agreement, the Manager, the Support Manager and such Support Staff as may from time to time be considered appropriate shall communicate with each other at least once in each calendar year at a time to be agreed between the Manager and the Support Manager, for the purpose of discussing provision of the Services and any other appropriate matters. 12 NON-SOLICITATION The Customer shall not, for the duration of this Agreement, and for a period of six months following termination, directly or indirectly induce or attempt to induce any employee of the Supplier who has been engaged in the provision, receipt, review or management of the Services or otherwise in connection with this Agreement to leave the employment of the Supplier. 13 RISK AND TITLE Risk in, and title to, any media bearing any software or Documentation or other information that may from time to time be supplied by the Supplier to the Customer shall pass to the Customer on acceptance by the Customer. 14 FORCE MAJEURE 14.1 Subject to due compliance with Clause 14.2, neither party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its reasonable control including, without limitation, act of God, governmental act, war, fire, flood, explosion or civil commotion In the event of either party being so delayed or prevented from performing its obligations, such party shall: give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the commencement date and extent of such delay or prevention, the cause thereof and its estimated duration; use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this Agreement; and resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention In the event that such delay or prevention continues for more than [eight] weeks, the party whose performance is not delayed or prevented may terminate this Agreement on Strana 17 z 21

18 30 days written notice to the other party, in which case the provisions of Clause 17 shall apply. 15 TERM Supply of the Services by the Supplier to the Customer shall commence on the date of this Agreement and, subject to termination in accordance with the provisions of this Agreement, shall continue for a fixed term of five (5) years. Following expiry of the fixed term, the supply of the Services shall (subject as aforesaid) continue under this Agreement from year to year until terminated by either the Supplier or the Customer on 90 days prior written notice to the other to expire at the end of the current year of the term. 16 TERMINATION 16.1 Each party shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement immediately by notice to the other if the other: is in material or persistent breach of any of its or its obligations under this Agreement and either that breach is incapable of remedy, or that other party has failed to remedy that breach within 30 days after receiving written notice requiring it to do so; or is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administra tive or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction The Customer shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement at any time on three months written notice to the Supplier. 17 CONSEQUENCES OF TERMINATION 17.1 On expiry or termination of this Agreement: the Customer s right to receive the Services shall cease automatically; Strana 18 z 21

19 each party shall immediately return to the other all property and materials containing Confidential Information (as defined in Clause 19) belonging to the other; and all amounts due from the Customer under this Agreement shall be paid immediately by the Customer Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly, or by implication, intended to come into force or continue in force on or after that termination. 18 ASSIGNMENT AND SUB-CONTRACTING 18.1 Subject to the remaining terms of Clause 18, neither party may assign, sub-license, subcontract, mortgage or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld or delayed The Supplier may sub-contract any of its obligations under this Agreement on notice to the Customer provided that it shall remain liable to the Customer for the performance of all such obligations. 19 CONFIDENTIALITY AND PUBLICITY 19.1 Each party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for its own purposes, nor without the prior written consent of the other disclose to any third party, any and all information of a confidential nature (including trade secrets and information of commercial value) that may become known to such party from the other party, and which relates to the other party or any of its Affiliates ( Confidential Information ), unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party Notwithstanding the provisions of Clause 19.1, the Supplier may make public the fact that it acts on behalf of the Customer The terms of this Agreement may not be disclosed by the Customer (other than to its legal advisers) without the prior written consent of the Supplier. Strana 19 z 21

20 19.4 The provisions of this Clause 19 shall remain in full force and effect notwithstanding any termination of this Agreement. 20 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. 21 SEVERABILITY If any provision of this Agreement is judged to be illegal or unenforceable, the contin uation in full force and effect of the remainder of the provisions will not be prejudiced. 22 AMENDMENTS Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties. 23 THIRD PARTY RIGHTS No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement. 24 NOTICES Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement. Notices may be sent by first-class mail or , provided that s are confirmed within 48 hours by first-class mailed confirmation of a copy. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting and correctly directed s shall be deemed to have been received instantaneously on transmission, provided that they are confirmed as set out in this contract. Unless stated otherwise, the provisions of this Clause 24 shall not apply to day-today communications between the Support Staff, Support Manager and Manager relating to the performance of the Services pursuant to Clause ENTIRE AGREEMENT This Agreement, the schedules and the documents annexed to it or referred to in it contain the whole agreement between the parties relating to the subject matter hereof, and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. Strana 20 z 21

21 26 GOVERNING LAW AND JURISDICTION This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts. IN WITNESS whereof the parties have signed this document as an agreement the day and year first before written. Strana 21 z 21