End User License Agreement

Parties

  1. International Software Publishing Limited trading as DQ Global a company registered in England and Wales under number 03092794 whose registered office is at Merlin House, 4 Meteor Way, Lee-on-the-Solent, Hampshire, PO13 9FU (Supplier)
  2. (Customer)

Background

The Parties have agreed that the Supplier will supply software and services to the Customer in accordance with the provisions of, this Agreement.

  1. DEFINED TERMS

    1. In this Agreement, including any Appendices, the words defined below shall have the meanings set out against them
      TermDefinition
      Acceptance Criteriathe criteria to test whether the Licenced Software conforms to the Specifications using the Acceptance Tests and are otherwise materially free of Software Defects
      Acceptance Datemeans the deemed acceptance date set out in clause 13
      Acceptance Teststests designed by the Customer using the Acceptance Criteria to ensure that the Licenced Software meets the Specifications contained in this Agreement and Appendices and which may include performance, capacity, end-to-end functionality, initial production use, and other testing
      Agreementmeans this Agreement and Appendices hereto or as amended by the parties in accordance with clause 30.1 and all additional modifications to this Agreement and/or Appendices agreed by the parties subsequently
      Approved Operationsthe use of the Licenced Software as set out in this Agreement
      Authorised Representativepersons duly authorised by the Customer and Supplier to act on their behalf for the purposes of this Agreement and set out in this Agreement
      Authorised Usersthose employees, independent contractors and advisers of the Customer who are entitled to use the Software Services under this agreement, as further described in this Agreement
      Business Daymeans Monday to Friday, inclusive, but excluding public and bank holidays applicable in England, Wales and Scotland
      Business Hoursmeans the hours between 9am and 5pm (UK time) on a Business Day
      Commencement Datethe date specified in this Agreement for each element of the Licenced Software
      Configurationconfiguration of any Licenced Software to be carried out by the Supplier for the Customer as set out in this Agreement
      Custom Softwarethose software programs developed or modified by the Supplier specifically for the Customer as set out in this Agreement where the Supplier may specify in this Agreement that the Customer will be granted a perpetual licence of some or all of the Intellectual Property Rights in those programs on payment of the Fees as set out in this Agreement
      Data Protection Legislationall United Kingdom data protection legislation and regulations including GDPR (General Data Protection Regulation) between the period 25th May 2018 and 11 pm on 31st December 2020, and UK GDPR (United Kingdom General Data Protection Regulation) from 31st December 2020.
      Deliverablesthose Hosting Services, Software, Services, Support Services or other items set out in this Agreement to be supplied by the Supplier
      Documentationthe operating manuals, user instruction manuals, technical literature and all other related materials in human-readable and/or machine readable forms supplied by the Supplier in accordance with this Agreement
      ExpertA Technology Expert or Industry Expert
      Feesthe fees and charges payable by the Customer as set out in this Agreement or otherwise agreed between the parties
      Hosting Defectan error in the provision of the Hosting that causes it to fail to operate substantially in accordance with the relevant Documentation or Specifications
      Hosting Servicesthe services that the Supplier provides to allow Authorised Users to access and use the Licenced Software, including hosting set-up and ongoing services, as described in this Agreement
      Incorporated Third Party Softwarethose software programs owned by third parties which are Licenced to the Supplier to supply with the Supplier`s standard software
      Industry Expertthe person specified in this Agreement or a fellow of the British Computer Society who is nominated by the Customer and the Supplier jointly or, if they cannot agree, who is nominated by the President of the British Computer Society on application by either the Customer or the Supplier
      Infringement Claima claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Licenced Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party
      Intellectual Property Rightsall 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
      Licencethe licence to use the Licenced Software as set out in clause 3.2 or as amended by this Agreement.
      Licence Feethat part of the fees payable by the Customer to the Supplier as set out in this Agreement which is described as licence fee payable for the benefit of the licence to use the Licenced Software
      Licenced Softwaremeans
      1. the Supplier`s standard software specified in this Agreement from time to time;
      2. any Modified Software;
      3. any Custom Software;
      4. any Incorporated Third Party Software;
      5. all Maintenance Releases relating to those items
      Maintenance Releasea release to be applied to the Licenced Software designed to update, correct faults, add functionality, function as a new version or otherwise amend or upgrade the Licenced Software
      Modified Softwaresoftware programs developed by the Supplier from its standard software programs in accordance with this Agreement where ownership of all Intellectual Property Rights is to stay with the Supplier
      Project Managerthe person appointed by the Customer or Supplier
      Renewal Termthe period of an extension of this agreement as set out in clause 26.1
      Service Level Arrangementsthe service level arrangements set out in this Agreement for Hosting Services
      Servicesmeans the consultancy, development, configuration, implementation or data cleansing services to be performed by the Supplier as set out in this Agreement
      Software Defectan error in the Licenced Software that causes it to fail to operate substantially in accordance with the relevant Documentation or Specifications
      SpecificationsDetailed requirements of the Modified Software or Custom Software as set out in this Agreement
      Supplier Support Teamthose employees of the Supplier who are dedicated to providing support to the Customer in their use of the Licenced Software
      Support Servicesthe support services to be provided by the Supplier under clause 16 for the Licenced Software that is supported as specified in this Agreement and only where the Customer has paid a fee for maintenance and support as set out in this Agreement
      Technology Expertan expert who is nominated by the Customer and the Supplier jointly or, if they cannot agree, who is nominated by the President of the British Computer Society on application by either the Customer or the Supplier
      Termthe period for which the Licence is valid as set out in this Agreement
      Third Party Softwarethe software programs proprietary to third parties, listed in this Agreement, which are to be provided to the Customer without modification
      Trial Periodthe period, if any, specified in this Agreement in which the Customer may test the Trial Software to confirm adequacy with their requirements or to identify any further bespoke work which may be required to meet those requirements
      Trial Softwarethose of the Licenced Software programs which are specified for trial in this Agreement
      UK Data Protection Regulationall United Kingdom data protection legislation and regulations including GDPR (General Data Protection Regulation) between the period 25th May 2018 and 11 pm on 31st December 2020, and UK GDPR (United Kingdom General Data Protection Regulation) from 31st December 2020.
  2. GENERAL INTERPRETATION

    1. A reference to one gender includes a reference to all genders.
    2. Words in the singular include the plural and in the plural include the singular.
    3. 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.
    4. 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.
    5. Clause and schedule headings do not affect the interpretation of this Agreement.
    6. Writing or written includes e-mail but not faxes or any other form of electronic communication, except where expressly provided to the contrary.
    7. Holding company and Subsidiary shall be construed in accordance with section 1159 of the Companies Act 2006, as amended.
  3. AGREEMENT TO PROVIDE SERVICES

    1. The Supplier agrees to provide, and the Customer to accept, the Licence, the Services and the Support Services from the Commencement Date specified on the terms set out in this Agreement.
    2. The Supplier agrees to provide, and the Customer to accept, the Hosting Services from the Commencement Date specified on the terms set out in this Agreement.
    3. The Services, Hosting Services, Support Services and Licence to be supplied shall be as set out within this Agreement.
    4. This Agreement and any Appendices shall contain the following, as appropriate:
      1. a detailed description of the Licences to be provided;
      2. a detailed description of all Hosting Services, Services and Support Services to be performed by the Supplier;
      3. the Approved Operations and the Term for the Licenced Software;
      4. a detailed description of any Modified Software to be written by the Supplier including:
        1. the full Specification for the additions or modifications to the standard software;
        2. details of any additional annual support fee in respect of Maintenance Services for the Modified Software;
      5. a detailed description of any Custom Software to be written by the Supplier including:
        1. the full Specification for the software;
        2. details of the Intellectual Property Rights to which the Customer will be granted a licence (whether this be an exclusive or non-exclusive licence and whether this be a transferrable or non-transferrable licence) while this Agreement remains in force; and
        3. details of the additional annual support fee in respect of Maintenance Services for the Custom Software;
      6. a listing and description of Deliverables and Documentation, if any, to be produced;
      7. the Service Level Arrangements for any Hosting Services;
      8. the date on which the work is to commence and the anticipated completion date;
      9. a schedule of the Fees, including Licence Fees, Hosting Fees, Support Fees and the Fees for the Services;
      10. a schedule of payment dates and terms for the Fees detailed in section 3.4.9;
      11. appropriate Supplier and Customer project milestones and dates, if required;
      12. any other information relevant to the work covered by this Agreement;
      13. the signatures of the Authorised Representatives of the Supplier and Customer.
  4. HOSTING SERVICES

    1. Where specified, the Supplier will provide the Hosting Services and will use reasonable endeavours to deliver the Hosting Services without interruption.
    2. The Service Level Arrangements shall apply as from the beginning of the calendar month following the Acceptance Date.
    3. The Hosting Services may be used only by Authorised Users.
    4. In relation to Authorised Users:
      1. the Customer shall be responsible for the actions of Authorised Users accessing the system via the Customer`s Account;
      2. the Customer shall ensure that where the Licenced Software requires a password each Authorised User who is provided with a relevant password keeps a secure password for his use of the Licenced Software, that such password is changed at least once per calendar month and that each Authorised User keeps his password confidential;

        the Supplier may audit the Licenced Software regarding the name and password for each Authorised User using Software requiring a password. Such audit may be conducted no more than once per quarter, at the Supplier`s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business;

      3. LICENCE

        1. In consideration of the Licence Fee paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence commencing on the Commencement Date and expiring at the end of the Term or any Renewal Term: 5.1.1 where Hosting Services are provided, to access the Licenced Software and the Documentation through the Hosting Services as set out in clause 5.3;
        2. The Supplier shall provide or provide access to the Incorporated Third Party Software or Third Party Software under the standard licence terms provided by such third parties, copies of which shall be provided to the Customer, and the Customer agrees to be bound by such licence terms.
        3. For the purposes of clause 5.1, use of the Licenced Software shall be restricted to use of the Licenced Software in the manner specified in the Documentation as appropriate for the following purposes:
          1. pre-production use for testing and familiarisation only prior to the Acceptance Date (the “Trial Period”);
          2. processing the Customer`s data for the Approved Operations on and after the Acceptance Date as set out in this Agreement.
        4. In relation to scope of use:
          1. the Customer may not use the Licenced Software other than as specified in clause 5.3 without the prior written consent of the Supplier and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier, such fees to be documented in this Agreement;
          2. the Customer shall provide and maintain all required hardware, infrastructure, networks, operating systems and software needed to use the Licenced Software or, where applicable, access the Hosting Services and shall warrant that the Customer possesses such licence(s) as may be necessary for the usage of the said operating systems and software and indemnifies the Supplier against any claims relating to such operating systems and software (unless expressly excluded in this Agreement);
          3. where the Supplier is providing Hosting Services, the Customer has the right to use those parts of the Licenced Software and Documentation which are required to be loaded by the Customer but shall have no right to copy or install that part of the Licenced Software or Documentation which is to be accessed through the Hosting Services;
          4. except as stated in clause 5.4.3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Licenced Software in whole or in part;
          5. the Customer must not knowingly introduce viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful, nor attempt to gain unauthorised access to the Licenced Software.
        5. The Customer shall not sub-license, rent, lend, assign or transfer in any other way the Licence or the Licenced Software to any person without the prior written consent of the Supplier.
        6. The Customer shall be responsible for ensuring that there is no breach of the terms of this agreement by any person hosting the Licenced Software or any part of it on behalf of the Customer and shall indemnify the Supplier against any such breach.
      4. SERVICES

        1. The Supplier shall provide the Services as set out in this Agreement between the parties.
      5. DOCUMENTATION

        1. The Supplier shall provide to the Customer documentation on system usage via the Supplier website.
        2. The Customer may make such further copies of the Documentation as are reasonably necessary for the use of the Licenced Software and for training the Customer’s personnel in use of the Licenced Software.
        3. The Customer shall be entitled to provide copies of the Documentation to any third party who is Licenced to use the Licenced Software under the terms of the Licence.
      6. GOVERNANCE

        1. The Customer shall appoint an Authorised Representative, who shall have the responsibility and commensurate authority for this Agreement and to whom all questions regarding this Agreement can be referred to the Supplier Support Team.
      7. CONDUCT OF THE WORK

        1. The Supplier shall carry out the Services with reasonable diligence and despatch, and with reasonable skill and expertise through its employees, contractors, and agents.
        2. The Supplier shall use reasonable endeavours to manage and complete the Services, and to deliver the Deliverables to the Customer, in accordance with this Agreement.
        3. The Customer shall fulfil its duties under this Agreement with reasonable diligence and despatch, and with reasonable skill and expertise and shall co-operate with the Supplier in any manner reasonably required by the Supplier, including, but not limited to:
          1. timely provision of all specifications, information and data which are required from the Customer as specified in this Agreement;
          2. making available suitably qualified employees and contractors of the Customer;
          3. provision of access to the Customer`s premises and office accommodation and other facilities for the Supplier’s employees and contractors; and
          4. provision of supplies reasonably required by the Supplier, such as power and computer consumables.
        4. The Customer shall, at its own expense, prepare its premises and hardware in accordance with the information provided by the Supplier in advance.
      8. IMPLEMENTATION AND EXTENSION OF TIME

        1. The Supplier and the Customer shall each use reasonable endeavours to meet those dates specified in this Agreement, subject to the provisions of clause 10.2.
        2. The Supplier shall be given an extension of time if one or more of the following events occurs:
          1. any changes are made at the Customer’s request pursuant to the change control procedures set out in clause 11;
          2. the Customer fails to meet any milestones or dates contained in this Agreement;
          3. a force majeure event occurs as described in clause 30; or
          4. delay is caused in whole or in part by an action or omission of the Customer, its employees, agents, or third party contractors.
        3. If the Supplier is entitled to an extension of time under clause 10.2, 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 32, shall estimate the probable extent of the delay.
        4. The Customer Project Manager and the Supplier Project Manager shall use reasonable endeavours to agree in writing what extension of time is reasonable in the circumstances. The timetable in this Agreement shall be deemed amended accordingly. If the Project Managers cannot reach Agreement the provisions of clause 38 shall apply.
        5. If the provision of the Deliverables is delayed at the request of, or because of the acts or omissions of, the Customer, and the Supplier can demonstrate that the delay has resulted in an increase in cost to the Supplier of carrying out its obligations under this Agreement, the Supplier may at its sole discretion increase the Fees by an amount equal to any such demonstrable cost. The Supplier may invoice the Customer for any additional monies that become payable in this way, within 30 days of demonstrating the increase in costs.
      9. CHANGE CONTROL

        1. The Customer and the Supplier may, by giving written notice to the other at any time during the term of this Agreement, request a change to the Deliverables.
        2. Where changes to any applicable legislation or regulation requires substantial changes to the Licenced Software, the Supplier may notify the Customer by giving written notice that any Maintenance Release incorporating those changes will be chargeable.
        3. Following receipt of a notice specified in clause 11.1 or to accompany any notice given under clause 11.2, the Supplier shall, at its standard rates then in force and within a reasonable time (such time being agreed between the parties), prepare for the Customer a written estimate of any increase or decrease in the Fees, and of any effect that the requested change would have on the timescales defined in this Agreement.
        4. Following receipt of the written estimate referred to in clause 11.3, the Customer shall inform the Supplier in writing of whether or not the Customer wishes the requested change to be made. The Supplier will proceed with the change on receipt of confirmation and will issue an updated Agreement.
        5. The Supplier shall continue to provide the Services in accordance with the current Agreement until any changes are agreed by the Customer.
      10. TRIAL PERIOD AND ACCEPTANCE TESTS

        1. The Customer shall be entitled to a free trial of the Licenced Software for 14 days from registration or until their trial allocation of credits has been fully utilised, whichever is the earlier.
        2. The Supplier shall provide the Customer with reasonable assistance during a Trial Period at the Customer’s request and at the Supplier’s standard rates then in force.
        3. The Acceptance Criteria shall be such as are reasonably required to show that the Licenced Software operates in accordance with:
          1. in the case of the Licenced Software, the outline of operation provided by the Supplier in the Documentation and Specifications set out in this Agreement;
          2. in the case of Configuration or Custom Software, the Specification set out in this Agreement.
        4. The Supplier shall provide the Customer with reasonable assistance to prepare the Acceptance Criteria at the Customer’s request and at the Supplier’s standard rates then in force.
        5. If the parties are unable to reach agreement on the Acceptance Criteria, the matter shall be referred to an Expert for determination under clause 38.2.
        6. The Customer shall design the Acceptance Tests, using the Acceptance Criteria, and carry out the agreed Acceptance Tests in accordance with the timescale set out in this Agreement or in the installation notes. The Acceptance Tests shall be started as soon as reasonably possible after the relevant element of the Licenced Software was made available to the Customer and shall be run continuously during Business Hours. The Customer shall give the Supplier at least 48 hours’ notice of the start of the Acceptance Tests and permit the Supplier to observe all or any part of the testing.
        7. If the Licenced Software passes the Acceptance Tests the Customer shall notify the same to the Supplier within five days.
        8. If the Licenced Software fails to pass the Acceptance Tests, the Customer shall, within six 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). The Supplier shall remedy the Defects and/or deficiencies and the relevant test(s) shall be repeated within a reasonable time.
        9. If the Licenced Software fails in some material respect to pass any repeated Acceptance Tests within the time specified in this Agreement or otherwise agreed by reference to the date of its second submission to the Acceptance Tests, then the parties will agree a new date for carrying out further tests on the Licenced Software on the same terms and conditions. If the Licenced Software fails such further tests then the Customer shall be entitled to request a repeat test under the provisions of this clause 12.6 or to proceed under clause 12.10.2.
        10. If the Supplier is unable to correct material Defects within the period specified in this Agreement from the commencement of Acceptance Tests under clause 12.4:
          1. if the part of the Licenced Software that fails the Acceptance Tests is not a fundamental part of the Licenced Software and the Licenced Software can operate without it, the Supplier shall be entitled to additional time to correct the Defects and submit the amended software for further Acceptance Tests in accordance with this clause 12;
          2. if the Defects in the Licenced Software are such that the Customer is unable to use the Licenced Software the Customer shall be entitled to terminate the Licence in relation to the Licenced Software that has failed the Acceptance Tests.
        11. If the Customer terminates a licence of Trial Software under clause 12.3 or under clause 12.10.2 the Customer shall remain liable to pay for any Hosting Services or Services supplied prior to the date of termination.
      11. ACCEPTANCE

        1. Acceptance of the Licenced Software shall be deemed to have occurred on whichever is the earliest of:
          1. the notifying of the Supplier by the Customer that it passed the Acceptance Tests; or
          2. the expiry of six days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under clause 12.3; or
          3. the expiry of ten days after the Customer`s testing completion milestone as set out in this Agreement if the Acceptance Tests have not started, or have not been pursued with due diligence, unless such failure results from the Supplier’s failure to co-operate in the performance of the Acceptance Tests; or
          4. the use of the Licenced Software or continued use of the Licenced Software by the Customer in production or to process any of the Customer`s data.
      12. MAINTENANCE

        1. The Supplier will use commercially reasonable efforts to maintain the Licenced Software and shall issue Maintenance Releases as available from time to time.
        2. Where the Supplier is supplying Hosting Services the Supplier will install all Maintenance Releases as specified in this Agreement relating to the Hosting Services.
        3. The Supplier will carry out virus checks on all Licenced Software prior to supply to the Customer.
        4. The Supplier reserves the right to provide Maintenance Releases as updates to the Licenced Software, or by way of issue of a new version. Where a Maintenance Release is issued as a new version, those functions of the new version for which the Customer does not subscribe will not be activated or will be de-activated in the Maintenance Release available to the Customer. The Supplier may elect entirely at its own discretion to provide some elements of the functionality of the new version to the Customer at no additional cost to the Customer.
      13. ANALYTICS

        1. The Supplier may track and analyse the usage of the Licenced Software for purposes of determining usage made of the Licenced Software, for the purposes of security, to assist customers, and for improving the Software and Services and the user experience in using such Software and Services. For example, the Supplier may use this information to help customers derive more value from the Licenced Software and Services, to understand and analyse trends, or to track which features are used most often in order to improve the Software and Services. The Supplier may share anonymous usage data with its service providers for the purpose of helping in such tracking, analysis and improvements. Additionally, the Supplier may share such anonymous usage data on an aggregate basis in the normal course of operating their business; for example, the Supplier may share information publicly to show trends about the general use of its software and services.
      14. SUPPORT SERVICES

        1. The Supplier will provide support for the Hosting Services, where applicable, and the Licenced Software, for the periods, and for the Fees, specified in this Agreement after the Licenced Software has been accepted in accordance with clause 13. All changes to the Licenced Software will be issued by way of Maintenance Releases. Maintenance Releases will be cumulative.
        2. The Supplier shall ensure that support is available during Business Hours to provide assistance to the Customer in respect of the following:
          1. remedying any Software Defects; and
          2. providing advice on the use of the Licenced Software;
          and where hosting is provided
          1. assisting the Customer with access to the Hosting Services; and
          2. remedying any Hosting Defects.
        3. The initial contact point for all support will be support@dqglobal.com, but the Supplier will respond to email and telephone contact as soon as reasonably practicable.
        4. Support Fees are based on the Customer providing full remote access to the Customer`s systems and all hosting of the Licenced Software to the Supplier.
        5. The Supplier shall use reasonable endeavours to correct Defects notified to it by the Customer in a timely manner appropriate to the seriousness of the circumstances in accordance with the priority levels and response times set out in clauses 16.6 and 16.7.
        6. The priority levels and response times for Hosting Services will be calculated by reference to Business Hours and are as follows:
          Priority LevelDefinition of SeverityResponse and Response Time
          P1

          The notified Hosting Defect halts or substantially impairs the Customer’s operations which use the Licenced Software.

          There is no work-around for the Hosting Defect.

          Within two Business Hours, the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Hosting Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress.
          P2The notified Hosting Defect, while not halting or substantially impairing the Customer’s operations, causes those operations to become significantly impacted or causes substantial inconvenienceWithin four Business Hours the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Hosting Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress.
          P3The notified Hosting Defect causes restrictions in the operation of the Licenced Software but does not have an impact on results falling within P1 or P2.Within sixteen Business Hours the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Hosting Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress including progress on any Maintenance Release which will address the Hosting Defects.
          P4The notified Hosting Defect affects the look and feel or the Licenced Software or is a minor matter not falling within P1, P2 or P3.Within forty Business Hours the Supplier will notify the Customer of progress on any Maintenance Release which will address the Hosting Defects.
        7. The priority levels and response times for Software Defects will be calculated by reference to Business Hours and are as follows:
          Priority LevelDefinition of SeverityResponse and Response Time
          P1

          The notified Software Defect halts or substantially impairs the Customer’s operations which use the Licenced Software.

          There is no work-around for the Software Defect.

          Within two Business Hours, the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Software Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress.
          P2The notified Software Defect, while not halting or substantially impairing the Customer’s operations, causes those operations to become significantly impacted or causes substantial inconvenienceWithin four Business Hours the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Software Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress.
          P3The notified Software Defect causes restrictions in the operation of the Licenced Software but does not have an impact on results falling within P1 or P2.Within sixteen Business Hours the Supplier will:
          1. contact the Customer to discuss the problem;
          2. will commence investigation and correction of the Software Defect during Business Hours;
          3. will keep the Customer informed from time to time of progress including progress on any Maintenance Release which will address the Software Defects.
          P4The notified Software Defect affects the look and feel or the Licenced Software or is a minor matter not falling within P1, P2 or P3.Within forty Business Hours the Supplier will notify the Customer of progress on any Maintenance Release which will address the Software Defects.
        8. Where a Software Defect is to be corrected in a forthcoming Maintenance Release then in relation to a Software Defect falling within priority levels P2, P3 or P4 the Supplier shall be entitled to decline to provide assistance in respect of that Software Defect for a reasonable period prior to the issue of such Maintenance Release.
        9. Where the Customer suffers a degradation in the performance of its systems the Customer shall carry out a reasonable investigation to ascertain the cause of the performance issues before reporting a Defect. Where the Customer has carried out its own investigations it may request the Supplier to carry out performance testing, and the Supplier will provide testing.
        10. If the Customer’s request to investigate a failure of the Hosting Services or Software, proves, in the Supplier’s reasonable opinion not to have been caused by a Hosting Defect or Software Defect, the Supplier shall be entitled to charge the Customer for the time spent at the rates set out in this Agreement.
        11. The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Support Services, provided such changes do not have a material adverse effect on the Customer`s business operations.
        12. The Supplier shall have no liability and no obligation to provide the Support Services where the faults arise from:
          1. the Customer misrepresenting the priority level on six or more occasions within 6 calendar months;
          2. misuse, incorrect use of or damage to the Licenced Software or Hosting Services; or
          3. failure to maintain the necessary environmental conditions for any hardware necessary for the use of the Licenced Software or Hosting Services; or
          4. use of the Licenced Software or Hosting Services in combination with any equipment or software not approved by the Supplier, or any fault in any such equipment or software; or
          5. requests for support arising from relocation of the Licenced Software or for access to the Hosting Services from a new location; or
          6. any breach of the Customer`s obligations under this Agreement.
      15. CUSTOMER’S OBLIGATIONS IN RELATION TO SUPPORT SERVICES

        1. The Customer shall:
          1. co-operate with the Supplier in performing the Support Services and provide in a timely manner any assistance or information as may reasonably be required by the Supplier;
          2. report faults promptly to the Supplier;
          3. take due care in allocating priority levels to all faults;
          4. ensure that all users are trained regularly in the Licenced Software including updating such training on all Maintenance Releases; and
          5. keep full back-up copies of all of its data.
        2. The Customer shall permit the Supplier to have online access to the Licenced Software for the purpose of carrying out remote diagnostics and correction of Defects.
        3. The Customer shall comply as soon as reasonably practicable with all the Supplier’s reasonable requests for information or assistance.
        4. The Supplier’s obligations to provide Support Services under the Agreement are subject to, and contingent on, the proper use and care by the Customer of the Licenced Software.
        5. The Supplier does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defect which does not materially affect the Customer’s operations using the Licenced Software will be corrected prior to the issue of the next Maintenance Release.
      16. APPLICABLE LAWS AND DATA PROTECTION

        1. Each party shall comply with all applicable laws, statutes and regulations which may apply from time to time, including all Data Protection Legislation. The Customer shall be responsible for notifying the Supplier of any laws of any country other than England and Wales which may apply to the delivery of the Deliverables to the Customer by the Supplier.
        2. The parties acknowledge that for the purposes of the Data Protection Legislation where the Supplier receives any Personal Data from the Customer for processing, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). The scope, nature and purpose of any processing by the Supplier, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject shall be as set out in this Agreement.
        3. Without prejudice to the generality of clause 18.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
        4. The Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
          1. process that Personal Data only where the Supplier is required by Applicable Laws to do so. Where the Supplier is relying on laws of the United Kingdom, a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
          2. ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
          3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
          4. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
          5. notify the Customer without undue delay on becoming aware of a Personal Data breach;
          6. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
          7. maintain complete and accurate records and information to demonstrate its compliance with this clause 18 and allow for audits by the Customer or the Customer’s designated auditor.
        5. Where specified in this Agreement, the Customer consents to the Supplier appointing the specified person as a third-party processor of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement for this purpose. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
      17. BRIBERY

        1. Each party shall comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
      18. FEES

        1. The Customer shall pay the Fees:
          1. for the licences for the Licenced Software;
          2. for the Hosting Services;
          3. for the Services;
          4. for the development of Modified Software;
          5. for the development of the Custom Software;
          6. for the Support Services for the Licenced Software;
          7. for any other Deliverables,
          as set out in this Agreement.
        2. Fees for the Services and, where agreed, for the development of Licenced Software and any other Deliverables shall be calculated and charged on the following basis:
          1. This Agreement (and any Appendices) will include an estimate of the agreed man-days to be worked;
          2. The fees will be calculated using the rates set out in this Agreement and any Appendices;
          3. The Supplier will not exceed the estimated man-days or fees without prior agreement from the Customer, which will be agreed and documented according to Clause 10;
          4. The Supplier will record and invoice time in units of whole or half days where one whole day is at least 8 hours;
          5. The Supplier may invoice the Customer for reasonable expenses incurred at cost, provided these are estimated and agreed before being incurred.
        3. All undisputed invoices and all undisputed sums within a disputed invoice are due within 30 days of receipt of invoice. Customer shall notify the Supplier within fifteen working days of receipt of invoice if Customer disputes any part of an invoice and the parties shall attempt to resolve such disputed invoice or part thereof in good faith.
        4. One (1) month prior to the first anniversary of the date of this agreement and one (1) months prior to each subsequent anniversary, the Supplier shall propose to the Customer a revised schedule of Fees with reasonable details of the procedure used to prepare such estimate. The Customer and the Supplier shall endeavour to agree on the new schedule of Fees. If the parties are unable to reach agreement on any increase in the Fees by the relevant anniversary, the Fees shall be increased on that relevant anniversary by the amount of the increase in the United Kingdom Retail Prices Index (All Items) (or any index that replaces it) for the period from the date of this agreement to the first anniversary and thereafter for the twelve (12) months up to each subsequent relevant anniversary.
      19. INTELLECTUAL PROPERTY RIGHTS

        1. The copyright and other intellectual property rights of whatever nature in the Licenced Software and all Documentation are, and shall remain, the property of the Supplier, and the Supplier reserves the right to grant a licence to use the Licenced Software to any other party or parties.
        2. The Licenced Software and the Documentation are proprietary to the Supplier (or the appropriate third party rights owner(s)) and the Customer acquires no rights in or to the Licenced Software or the Documentation other than those expressly granted by this Agreement.
        3. The Customer shall use reasonable endeavours to prevent any violation of the Supplier’s proprietary rights in the Licenced Software and shall promptly report to the Supplier any such violation that comes to its attention.
      20. THIRD PARTY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT

        1. The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any 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. For the avoidance of doubt, clause 22.1 shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Licenced Software (or any part thereof) by the Customer other than in accordance with the terms of this licence or the use of a non-current release of the Licenced Software.
        2. Clause 22.1 is conditional on:
          1. the Customer notifying the Supplier in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
          2. 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
          3. 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.
        3. 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:
          1. procure for the Customer the right to continue using, developing, modifying or maintaining the Licenced Software (or any part thereof) in accordance with the terms of this licence; or
          2. modify the Licenced Software so that it ceases to be infringing; or
          3. replace the Licenced Software with non-infringing software; or
          4. terminate this Licence immediately by notice in writing to the Customer and refund any of the Licence Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer`s use of the Licenced Software to the date of termination) on return of the Licenced Software and all copies thereof,

          provided that if the Supplier modifies or replaces the Licenced Software, the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Licence been references to the date on which such modification or replacement was made.

        4. The Supplier shall have no liability for any claim of intellectual property infringement:
          1. caused by the Customer’s use of the Licenced Software in combination with software not supplied or approved in writing by the Supplier (other than the operating system of any Customer Hardware, provided that the Supplier was notified of the identity of this operating system before this Agreement was entered into); or
          2. resulting from any unauthorised modification of the Licenced Software; or
          3. based on use of any version of the Licenced Software other than the latest version supplied by the Supplier, if such claim could have been avoided by the use of such supplied version; or
          4. where the claim for infringement arises in respect of a feature of the Licenced Software which was provided at the request of the Customer.
      21. LIMITS OF LIABILITY

        1. The Supplier does not accept liability for any breach by the Customer of any relevant legislation and regulations which arises through use of the Licenced Software.
        2. The following provisions set out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-Contractors) to the other party in respect of:
          1. any breach of the Agreement;
          2. any use made by the Customer of the Deliverables or any part of them; and
          3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
        3. The Supplier does not warrant that the use of the Hosting Services or the Licenced Software will be uninterrupted or error-free or that the Hosting Services or the Licenced Software will work with hardware other than that used by the Customer as specified in this Agreement. The Supplier gives no warranties in relation to any Third Party Software supplied by the Supplier.
        4. The Customer accepts responsibility for the selection of the Licenced Software to achieve its intended results.
        5. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral Agreement, 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 or the use of reasonable skill and care.
        6. Except as expressly stated in clause 23.9:
          1. the Supplier and the Customer each hereby exclude all liability for negligence;
          2. neither party to this Agreement shall have liability for any losses or damages which may be suffered by the other party to this Agreement (or any person claiming under or through that party), whether the same are suffered directly or indirectly or are immediate or consequential, which fall within the following categories:
            1. loss of data;
            2. loss of profits;
            3. loss of business;
            4. depletion of goodwill and/or similar losses;
            5. loss of anticipated savings;
            6. loss of goods;
            7. loss of contract;
            8. loss of use;
            9. damages, fines, penalties or charges of any type levied on the Customer by any regulatory body;
            10. any special, indirect or consequential:
              1. loss;
              2. costs;
              3. damages;
              4. goodwill payments;
              5. charges; or
              6. expenses, or
            11. any pure economic loss.
        7. The liability of the Supplier to the Customer and the liability of the Customer to the Supplier, whether in contract, tort or otherwise and whether in connection with this licence or any collateral Agreement, shall in no circumstances exceed:
          1. in the case of the supply of Licenced Software, a sum equal to the Licence Fee paid for the 12 months preceding the date on which such cause of action arises; and
          2. in the case of the supply of Custom Software, a sum equal to the Fees for the Custom Software for the 12 months preceding the date on which such cause of action arises;
          3. in the case of the supply of Hosting Services, a sum equal to the Fees paid for such Hosting Services for the 12 months preceding the date on which such cause of action arises;
          4. in the case of the supply of Support Services, a sum equal to the Fees paid for such Support Services for the 12 months preceding the date on which such cause of action arises;
          5. in the case of supply of Services as set forth in this Agreement and any Appendices, a sum equal to the Fees for the Services as set out in this Agreement;
          and the total liability of the Supplier, whether under this Contract or any collateral contract shall not exceed the sums recoverable under the Supplier`s insurance from time to time as set out in this Agreement.
        8. The Customer acknowledges that no representations were made prior to entering into this Agreement. The Customer agrees that, in entering into this Agreement, 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. The Customer shall have no remedy in respect of any representation (whether written or oral) made to it on which it relied in entering into this Agreement and the Supplier shall have no liability otherwise than pursuant to the express terms of this Agreement.
        9. The exclusions in this clause 23 shall apply to the fullest extent permissible at law, but neither party excludes liability for:
          1. death or personal injury caused by the negligence of that party or its officers or employees, contractors or agents;
          2. fraud;
          3. breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or
          4. any other liability which may not be excluded by law.
        10. The limits set out in this clause 23 shall not apply where either party breaches any Data Protection Legislation in relation to any personal data which it receives from, or processes on behalf of, the other party.
        11. Any unauthorised modifications, use or improper installation of the Licenced Software by the Customer shall render all the Supplier’s warranties and support obligations null and void.
      22. DISCONTINUATION OF SOFTWARE

        1. The Supplier reserves the right to suspend or discontinue the Software (or any portion thereof). The Supplier shall provide 90 days prior written notice of any discontinuation of the Software, and shall provide a pro-rated refund or credit (at Customer`s option) of any pre-paid amounts relating to the unused portion of the term. The Supplier shall not be liable to Customer or to any third party for any suspension or discontinuation of the Software.
      23. SOLICITING OF PERSONNEL

        1. During the term of this Agreement and for a period of 12 months after its termination neither party shall, without the prior written consent of the other, employ or solicit the employment of, or permit any subsidiary or holding company to employ or solicit the employment of, any person who is employed by the other party in the course of developing, supplying, maintaining or supporting the Licenced Software or any part of it or in the provision of any of the Services.
      24. TERMINATION

        1. Subject to the remaining provisions of this clause 26 this Agreement shall commence on the Commencement Date and shall remain in effect for the Term specified in this Agreement. At the end of the Term the Agreement and the Licence granted under clause 5.1 shall automatically renew for further consecutive periods of one year each (each a “Renewal Term”), unless the Customer provides at least forty (40) Business Days written notice prior to the end of the Term or the end of any Renewal Term that it does not wish to renew the Agreement.
        2. The Supplier shall be entitled to terminate this Agreement, in whole only, being this Agreement and any Appendices, at any time upon giving at least forty (40) Business Days written notice to Customer. No refund shall be payable to the Customer in these circumstances.
        3. Each party shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement and any Appendices immediately by notice to the other if the other:
          1. is in material or persistent breach of any of 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
          2. 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 administrative 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.
        4. The Supplier shall have the right, without prejudice to its other rights or remedies, to terminate this Agreement and Appendices immediately by notice to the Customer if the Customer disputes the ownership or validity of the Supplier`s Intellectual Property Rights.
        5. The following clauses shall survive termination of this Agreement or any section of it:

          1, 5.4.5 (excluding the reference to clause 5.4.3), 18.4.1, 18.4.2, 18.4.7, 18.4.8, 21.1, 21.2, 23, 25.1, 28.1, 28.2, 31, 39.1.

      25. CONSEQUENCES OF TERMINATION

        1. On expiry or termination of this Agreement:
          1. the Customer`s right to use the Licenced Software and to receive the Hosting Services and the Services shall cease;
          2. the Customer shall immediately destroy or return to the Supplier (at the Supplier`s option) all copies of the Licenced Software and Documentation then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
          3. each party shall immediately return to the other all property and materials containing confidential information belonging to the other; and
          4. all amounts due from the Customer under this Agreement shall be paid immediately by the Customer
          5. all rights granted to the Customer under this Agreement shall cease;
          6. the Customer shall cease all activities authorised by this Agreement.
          7. the Supplier shall (at the Customer`s option) return or destroy any copies of Personal Data provided by or on behalf of the Customer (unless excluded by legislation from doing so).
        2. 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.
      26. CONFIDENTIALITY

        1. The Licenced Software and the Documentation are proprietary to the Supplier and contain valuable trade secrets. The Customer shall at all times keep the Licenced Software and Documentation confidential and shall not permit the same to be used, copied, disclosed or disposed of except in accordance with this Agreement.
        2. Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, 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 licence, or subsequently comes lawfully into the possession of such party from a third party.
        3. In relation to the Customer’s confidential information the Supplier may provide any sub-contractor with such Customer’s confidential information as it needs to know in order to perform its obligations relating to the Work, provided that such sub-contractor has first entered into a written obligation of confidentiality in terms similar to clause 28.2.
        4. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
      27. ASSIGNMENT

        1. Neither party shall assign, or grant any security interest over, any of its rights or obligations under this Agreement, or any document referred to in it, without the prior written consent of the other party.
      28. AMENDMENT

        1. No amendment, waiver or variation of this Agreement or any part of it shall be binding on the parties unless set out in writing, expressed to amend this Agreement or the relevant part of it and signed by the Authorised Representative for each of the parties.
      29. THIRD PARTY RIGHTS

        1. No term of this licence is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this licence.
      30. FORCE MAJEURE

        1. Subject to due compliance with clause 32.2 neither party shall be liable for any delay in meeting, or failure to meet, its obligations under this Agreement due to any cause outside its reasonable control including (without limitation) acts of God, war, riot, malicious acts of damage, fire, acts of any government authority, failure of the public electricity supply, strike, lock-out or labour dispute or apprehension thereof (whether or not the settlement of the matter is at the discretion of the party in question).
        2. In the event of either party being so delayed or prevented from performing its obligations, such party shall:
          1. 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;
          2. use all reasonable endeavours to mitigate the effects of such delay or prevention on the performance of its obligations under this Agreement; and
          3. resume performance of its obligations as soon as reasonably possible after the removal of the cause of the delay or prevention.
        3. In the event that such delay or prevention continues for more than 30 days, the party whose performance is not delayed or prevented may terminate this Agreement on 30 days written notice to the other party, in which case the provisions of clause 27 shall apply.
      31. NOTICES

        1. Any notice given under this Agreement shall be in writing and shall be delivered by email. A notice sent by email is deemed to have been delivered on the date of transmission. In proving the service of the notice, it shall be sufficient to prove that the same was duly despatched to the current email address of the addressee and no indication of non-delivery was received by the sender.
      32. WAIVER

        1. A waiver of any right under this Agreement is only effective if it is in writing and signed by the Authorised Representative of the waiving party, and it applies only to the person to whom the waiver is addressed and the circumstances for which it is given.
        2. Any waiver given as per Clause 34.1 shall apply only to the clauses specified in such waiver. All other provisions shall remain in force.
        3. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
      33. SEVERANCE

        1. If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
        2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
      34. AUTHORITY

        1. 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.
      35. ENTIRE AGREEMENT

        1. The parties agree that the documents listed in the sections, schedules and annexes to this Agreement constitute the complete and exclusive statement of the agreement between them with respect to the subject matter of this Agreement, which supersedes all proposals or representations, oral or written, and all other communications between them relating to it.
      36. DISPUTE RESOLUTION

        1. For the purpose of this clause 38, 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.
        2. In the event of any dispute in relation to the Acceptance Criteria or as to whether an error in the Licenced Software or any Custom Software owned by the Customer constitutes a Defect either party may refer the matter to:
          1. an Industry Expert in the case of any dispute concerning the results of any business functionality of the Licenced Software; and
          2. to a Technology Expert in the case of any dispute concerning any other matter.
        3. The Expert shall act as an expert and not as an arbitrator and:
          1. their decision shall be final and binding on the Customer and the Supplier; and
          2. their expenses shall be borne equally by the Customer and the Supplier unless the Expert shall otherwise direct.
        4. Unless this Agreement has already been terminated by the date of the notice of dispute, both parties shall in every case continue with their obligations under this Agreement with all due diligence regardless of the nature of the dispute and the Customer shall continue to pay all Fees due.
        5. After service of the notice of dispute, the following procedure shall be followed by the parties (and all periods specified in this clause shall be extendable by mutual agreement):
          1. if the Customer and Supplier are unable to reach a settlement within seven business days from the date of service of the notice, the Authorised Representatives of each of the parties shall meet within the following seven business days to attempt to settle the dispute; and
          2. if no settlement results from the meeting specified in clause 38.5.1, 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.
        6. If no settlement is reached under the provisions of clause 38.5 the dispute shall be determined the Courts of England commensurate with the scale of settlement requested, including, but not limited to, the English High Court.
      37. PUBLICITY

        1. The Supplier may use the Customer’s name and the existence of this Agreement in any publicity materials or advertising unless requested by the Customer not to do so.
      38. GOVERNING LAW AND JURISDICTION

        1. This Agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
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