Software license, support and maintenance agreement

Date 25th September 2017

PARTIES

  1. Auditus Ltd., a company incorporated in England and Wales registration number 10211656 having its registered office at 247-249 Cromwell Road, London, SW5 9GA (the “Licensor“); and
  2. Licensee a company or individual

AGREEMENT

  1. Definitions

1.1       Except to the extent expressly provided otherwise, in this Agreement:

Acceptance Criteria” means:

(a)        the Software conforming in all respects with the Software Specification; and

(b)       the Software being free from Software Defects;

Acceptance Period” means a period of 10 Business Days following the supply of the Software to the Licensee, or such other period as the parties may agree in writing;

Acceptance Tests” means a set of tests designed to establish whether the Software meets the Acceptance Criteria, providing that the exact form of the tests shall be determined and documented by the Licensee acting reasonably, and communicated to the Licensor in advance of the carrying out of the tests;

Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;

Business Day” means any weekday other than a bank or public holiday in England;

Business Hours” means the hours of 09:00 to 17:30 GMT/BST on a Business Day;

Charges” means the following amounts:

(a)        the amounts specified in Schedule 3 (Software License Agreement);

(b)       such amounts as may be agreed in writing by the parties from time to time; and

Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

Documentation” means the documentation for the Software produced by the Licensor and delivered or made available by the Licensor to the Licensee;

Effective Date” means the date of execution of this Agreement;

Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registerable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

Licensee Confidential Information” means:

(a)        any information disclosed by or on behalf of the Licensee to the Licensor at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been understood by the Licensor (acting reasonably) to be confidential;

Licensee Indemnity Event” has the meaning given to it in Clause 20.3;

Licensor Confidential Information” means:

(a)        any information disclosed by or on behalf of the Licensor to the Licensee at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked[ or described] as “confidential” or should have been understood by the Licensee (acting reasonably) to be confidential;

Licensor Indemnity Event” has the meaning given to it in Clause 20.1;

Minimum Term” means, in respect of this Agreement, the period of 24 months beginning on the Effective Date;

Permitted Purpose” means Status is to be used for the sole purpose of carrying out internal audits and reporting on audits carried out both externally and internally.

Prerequisite Software” means third party software that is required to enable the Software to function and has been identified in the Software Specification;

Release” means in respect of an Update or Upgrade, the release of that Update or Upgrade (as the case may be) to the customers of the Licensor generally (and “Released” shall be construed accordingly);

Remedy Period” means a period of 20 Business Days following the Licensee giving to the Licensor a notice that the Software has failed the Acceptance Tests, or such other period as the parties may agree in writing;

Schedule” means any schedule attached to the main body of this Agreement;

Services” means any services that the Licensor provides to the Licensee, or has an obligation to provide to the Licensee, under this Agreement;

Set Up Services” means the installation, integration and configuration of the Software in accordance with Schedule 1 (Software License Agreement);

Software” means the software identified in Schedule 1 (Software License Agreement);

Software Defect” means a defect, error or bug in the Software having an adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:

(a)        any act or omission of the Licensee or any person authorised by the Licensee to use the Software;

(b)       any use of the Software contrary to the Documentation by the Licensee or any person authorised by the Licensee to use the Software;

(c)        a failure of the Licensee to perform or observe any of its obligations in this Agreement; and/or

(d)       an incompatibility between the Software and any other system, network, application, program, hardware or software not specified as compatible in the Software Specification;

Software Specification” means the specification for the Software set out in Schedule 2 (Software License Agreement) and in the documentation, as it may be varied by the written agreement of the parties from time to time;

Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

Support Services” means support in relation to the use of the Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;

Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

Upgrade” means a major version upgrade of the Software.

  1. Term

2.1       This Agreement shall come into force upon the Effective Date.

2.2       This Agreement shall continue in force for a period of 24 months, at the beginning of which this Agreement shall terminate automatically, subject to termination in accordance with Clause 23 or any other provision of this Agreement.

 

 

  1. Supply of Software

3.1       The Licensor shall make the Software available to the Licensee during the whole of the period of 10 Business Days following the Effective Date, and shall provide to the Licensee such assistance in relation to the setup of the Software as the Licensee may reasonably request.

  1. Set Up Services

4.1       The Licensor shall provide the Set Up Services to the Licensee.

4.2       The Licensor shall use reasonable endeavors to ensure that the Set Up Services are provided upon or promptly following the Effective Date.

4.3       The Licensee acknowledges that a delay in the Licensee performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 21.1 the Licensor will not be liable to the Licensee in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Licensee performing its obligations under this Agreement.

4.4       Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Licensor shall be the exclusive property of the Licensor. If the works arising out of such performance form part of the Software, they shall be licensed to the Licensee under Clause 6.

  1. Acceptance procedure

5.1       During each Acceptance Period, the Licensee shall carry out the Acceptance Tests.

5.2       The Licensor hereby grants to the Licensee a non-exclusive non-transferable non-sublicensable licence to use the Software during each Acceptance Period solely for the purpose of conducting the Acceptance Tests.

5.3       The Licensor shall provide to the Licensee at the Licensor’s own cost and expense all such assistance and co-operation in relation to the carrying out of the Acceptance Tests as the Licensee may reasonably request.

5.4       Before the end of each Acceptance Period, the Licensee shall give to the Licensor a written notice specifying whether the Acceptance Tests have been passed or failed.

5.5       If the Licensee fails to give to the Licensor a written notice in accordance with Clause 5.4 or uses the Software for any purpose other than the conduct of the Acceptance Tests, then the Software shall be deemed to have passed the Acceptance Tests.

5.6       If the Licensee notifies the Licensor that the Acceptance Tests have been failed, then the Licensee must provide to the Licensor, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.

5.7       If the Licensee notifies the Licensor that the Software has failed the Acceptance Tests:

(a)        if the Licensor agrees with the Licensee that the Software does not comply with the Acceptance Criteria, then the Licensor must correct the issue and re-supply the Software to the Licensee before the end of the Remedy Period; or

(b)       otherwise, then the parties must meet as soon as practicable and in any case before the expiry of the Remedy Period and use their best endeavours to agree whether the Software does not comply with the Acceptance Criteria, and if appropriate a plan of action reasonably satisfactory to both parties, and they must record any agreement reached in writing.

5.8       Notwithstanding the other provisions of this Clause 5, but subject to any written agreement of the parties to the contrary, the maximum number of rounds of Acceptance Tests under this Clause 5 shall be 2, and if the final round of Acceptance Tests is failed, the Licensor shall be deemed to be in material breach of this Agreement.

5.9       A notification by the Licensee that the Software has passed the Acceptance Tests will not prejudice the Licensee’s rights in the event of a breach of any warranty given by the Licensor to the Licensee in this Agreement in relation to the Software; nor will any deemed passing of the Acceptance Tests under this Clause 5, unless the Licensee could not reasonably have been expected to have identified the breach of that warranty during the testing process.

  1. Licence

6.1       The Licensor hereby grants to the Licensee from the date of supply of the Software to the Licensee until the end of the Term a license to:

(a)        use a SAAS based application in accordance with the Documentation;

Subject to the limitations and prohibitions set out and referred to in this Clause 6.

6.2       The rights granted to the Licensee under Clause 6.1 must not be exercised for any purpose except the Licensee’s internal business purposes.

6.3       The Licensee may not sub-license and must not purport to sub-license any rights granted under Clause 6.1 without the prior written consent of the Licensor.

6.5       The Software may only be used by the officers and employees of the Licensee, and the officers and employees of the Licensee’s agents and auditors.

6.6       The Licensee must comply with the EULA and must ensure that all persons who use the Software with the authority of the Licensee comply with the EULA.

6.7       Save to the extent expressly permitted by this Agreement or required by applicable law on a non-excludable basis, any licence granted under this Clause 6 shall be subject to the following prohibitions:

(a)        the Licensee must not sell, resell, rent, lease, loan, supply, publish, distribute or redistribute the Software;

(b)       the Licensee must not alter, edit or adapt the Software without prior consent from the Licensor; and

(c)        the Licensee must not decompile, de-obfuscate or reverse engineer, or attempt to decompile, de-obfuscate or reverse engineer, the Software.

  1. Source Code

7.1       Nothing in this Agreement shall give to the Licensee or any other person any right to access or use the Source Code or constitute any licence of the Source Code.

  1. Maintenance Services

8.1       The Licensor shall provide the Maintenance Services to the Licensee during the Term.

8.2       The Licensor shall provide the Maintenance Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor’s industry.

8.3       The Licensor will use reasonable endeavors that the application of Updates and Upgrades to the Software by the Licensor will not introduce any Software Defects into the Software.

8.4       The Licensor warrants to the Licensee that the application of Updates and Upgrades to the Software by the Licensee in accordance with the instructions of the Licensor will not introduce any Software Defects into the Software.

8.5       The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue, and the Licensor has given to the Licensee at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

  1. Support Services

9.1       The Licensor shall provide the Support Services to the Licensee during the Term.

9.2       The Licensor shall provide the Support Services in accordance with the standards of skill and care reasonably expected from a leading service provider in the Licensor’s industry.

9.3       The Licensor shall provide the Support Services in accordance with Schedule 2.

9.4       The Licensor may suspend the provision of the Support Services if any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue, and the Licensor has given to the Licensee at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

10      Licensee obligations

10.1    Save to the extent that the parties have agreed otherwise in writing, the Licensee must provide to the Licensor, or procure for the Licensor, such:

(a)        co-operation, support and advice; and

(b)       information and documentation;

as are reasonably necessary to enable the Licensor to perform its obligations under this Agreement.

  1. No assignment of Intellectual Property Rights

11.1    Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Licensor to the Licensee, or from the Licensee to the Licensor.

  1. Charges

12.1    The Licensee shall pay the Charges to the Licensor in accordance with this Agreement.

12.2    If the Charges are based in whole or part upon the time spent by the Licensor performing the Services, the Licensor must obtain the Licensee’s written consent before performing Services that result in any estimate of time-based Charges given to the Licensee being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Licensee agrees otherwise in writing, the Licensee shall not be liable to pay to the Licensor any Charges in respect of Services performed in breach of this Clause 13.2.

12.3    All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Licensee to the Licensor.

  1. Payments

13.1    The Licensor shall issue invoices for the Charges to the Licensee on or after the invoicing dates set out in Schedule 3 (Software License Agreement).

13.2    The Licensee must pay the Charges to the Licensor within the period of 30 days following the issue of an invoice in accordance with this Clause 14.

13.3    The Licensee must pay the Charges by debit card, credit card, direct debit, bank transfer or cheque.

13.4    If the Licensee does not pay any amount properly due to the Licensor under this Agreement, the Licensor may:

(a)      charge the Licensee interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate.

13.5    If you cancel, your subscription will terminate at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.

  1. Licensor’s confidentiality obligations

14.1    The Licensor must:

(a)        keep the Licensee Confidential Information confidential;

(b)       not disclose the Licensee Confidential Information to any person without the Licensee’s prior written consent, and then only under conditions of confidentiality approved in writing by the Licensee;

(c)        use the same degree of care to protect the confidentiality of the Licensee Confidential Information as the Licensor uses to protect the Licensor’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)       act in good faith at all times in relation to the Licensee Confidential Information; and

(e)        not use any of the Licensee Confidential Information for any purpose other than the Permitted Purpose.

14.2    Notwithstanding Clause 15.1, the Licensor may disclose the Licensee Confidential Information to the Licensor’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Licensee Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Licensee Confidential Information.

14.3    This Clause 15 imposes no obligations upon the Licensor with respect to Licensee Confidential Information that:

(a)        is known to the Licensor before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b)       is or becomes publicly known through no act or default of the Licensor; or

(c)        is obtained by the Licensor from a third party in circumstances where the Licensor has no reason to believe that there has been a breach of an obligation of confidentiality.

14.4    The restrictions in this Clause 15 do not apply to the extent that any Licensee Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Licensor on any recognised stock exchange.

14.5    Upon the termination of this Agreement, the Licensor must immediately cease to use the Licensee Confidential Information.

14.6    Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the Licensee all media containing Licensee Confidential Information, and must irrevocably delete the Licensee Confidential Information from its computer systems.

14.7    The provisions of this Clause 15 shall continue in force indefinitely following the termination of this Agreement.

  1. Licensee’s confidentiality obligations

15.1    The Licensee must:

(a)        keep the Licensor Confidential Information strictly confidential;

(b)       not disclose the Licensor Confidential Information to any person without the Licensor’s prior written consent, and then only under conditions of confidentiality approved in writing by the Licensor;

(c)        use the same degree of care to protect the confidentiality of the Licensor Confidential Information as the Licensee uses to protect the Licensee’s own confidential information of a similar nature, being at least a reasonable degree of care;

(d)       act in good faith at all times in relation to the Licensor Confidential Information; and

(e)        not use any of the Licensor Confidential Information for any purpose other than the Permitted Purpose.

15.2    Notwithstanding Clause 16.1, the Licensee may disclose the Licensor Confidential Information to the Licensee’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Licensor Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Licensor Confidential Information.

15.3    This Clause 16 imposes no obligations upon the Licensee with respect to Licensor Confidential Information that:

(a)        is known to the Licensee before disclosure under this Agreement and is not subject to any other obligation of confidentiality;

(b)       is or becomes publicly known through no act or default of the Licensee; or

(c)        is obtained by the Licensee from a third party in circumstances where the Licensee has no reason to believe that there has been a breach of an obligation of confidentiality.

15.4    The restrictions in this Clause 16 do not apply to the extent that any Licensor Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Licensee on any recognised stock exchange.

15.5    Upon the termination of this Agreement, the Licensee must immediately cease to use the Licensor Confidential Information.

15.6    Following the termination of this Agreement, and within 5 Business Days following the date of receipt of a written request from the Licensor, the Licensee must destroy or return to the Licensor all media containing Licensor Confidential Information, and must irrevocably delete the Licensor Confidential Information from its computer systems.

15.7    The provisions of this Clause 16 shall continue in force indefinitely following the termination of this Agreement.

  1. Warranties

16.1    The Licensor warrants to the Licensee that:

(a)        the Licensor has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;

(b)       the Licensor will comply with all applicable legal and regulatory requirements applying to the exercise of the Licensor’s rights and the fulfilment of the Licensor’s obligations under this Agreement; and

(c)        the Licensor has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.

16.2    The Licensor warrants to the Licensee that:

(a)        the Software as provided will conform with the Software Specification;

(b)       the Software will be supplied free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and

(c)        the Software shall incorporate security features reflecting the requirements of good industry practice.

16.3    The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.

16.4    The Licensor warrants to the Licensee that the Software, when used by the Licensee in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.

16.5    If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the Licensee in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:

(a)        modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or

(b)       procure for the Licensee the right to use the Software in accordance with this Agreement.

16.6    The Licensee warrants to the Licensor that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.

16.7    All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

  1. Acknowledgements and warranty limitations

17.1    The Licensee acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.

17.2    The Licensee acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Software will be entirely secure.

17.3    The Licensee acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compatible with any other software. The Licensor reserves the right to amend the specification as the software is developed.

17.4    The Licensee acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Software; and, except to the extent expressly provided otherwise in this Agreement, the Licensor does not warrant or represent that the Software or the use of the Software by the Licensee will not give rise to any legal liability on the part of the Licensee or any other person.

  1. Indemnities

18.1    The Licensor shall indemnify and shall keep indemnified the Licensee against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the Licensee and arising directly or indirectly as a result of any breach by the Licensor of this Agreement

18.2    The Licensee must:

(a)        upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;

(b)       provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;

(c)        allow the Licensor the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensor Indemnity Event; and

(d)       not admit liability to any third party in connection with the Licensor Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,

without prejudice the Licensor’s obligation to indemnify the Licensee under Clause 18.1 shall not apply unless the Licensee complies with the requirements of this Clause 18.2.

18.3    The Licensee shall indemnify and shall keep indemnified the Licensor against any and all liabilities, damages, losses, costs and expenses including legal expenses and amounts reasonably paid in settlement of legal claims suffered or incurred by the Licensor and arising directly or indirectly as a result of any breach by the Licensee of this Agreement.

18.4    The Licensor must:

(a)        upon becoming aware of an actual or potential Licensee Indemnity Event, notify the Licensee;

(b)       provide to the Licensee all such assistance as may be reasonably requested by the Licensee in relation to the Licensee Indemnity Event;

(c)        allow the Licensee the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Licensee Indemnity Event; and

(d)       not admit liability to any third party in connection with the Licensee Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Licensee Indemnity Event without the prior written consent of the Licensee,

without prejudice to the Licensee’s obligation to indemnify the Licensor under Clause 18.3 shall not apply unless the Licensor complies with the requirements of this Clause 18.4.

18.5    The indemnity protection set out in this Clause 18 shall be subject to the limitations and exclusions of liability set out in this Agreement.

  1. Limitations and exclusions of liability

19.1    Nothing in this Agreement will:

(a)        limit or exclude any liability for death or personal injury resulting from negligence;

(b)       limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)        limit any liabilities in any way that is not permitted under applicable law; or

(d)       exclude any liabilities that may not be excluded under applicable law.

19.2    The limitations and exclusions of liability set out in this Clause 20 and elsewhere in this Agreement:

(a)        are subject to Clause 20.1; and

(b)       govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.

19.3    Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.

19.4    Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.

19.5    Neither party shall be liable to the other party in respect of any loss of revenue or income.

19.6    Neither party shall be liable to the other party in respect of any loss of use or production.

19.7    Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.

19.8    Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.

19.9    Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

19.10 The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the total amount payable by the Licensee to the Licensor under this Agreement in the 12 month period preceding the commencement of the event or events.

19.11 The aggregate liability of [each party to the other party] OR [the Licensor to the Licensee] OR [the Licensee to the Licensor] under this Agreement shall not exceed the total amount payable by the Licensee to the Licensor under this Agreement.

  1. Force Majeure Event

20.1    If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event.

20.2    A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:

(a)        promptly notify the other; and

(b)       inform the other of the period for which it is estimated that such failure or delay will continue.

20.3    A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

  1. Termination

21.1    This Agreement shall begin on the Commencement Date and shall continue for the Minimum Period, and thereafter for further periods of one year, renewing on the anniversary of the Commencement Date each year, until terminated by either party upon not less than 3 months’ written notice (such notice to be received no later than 3 months prior to the next anniversary of the Commencement Date, and to expire no earlier than the next anniversary of the Commencement Date).

21.2    Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)        the other party commits any breach of this Agreement, and the breach is not remediable;

(b)       the other party commits a breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(c)        the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).

21.4    Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:

(a)        the other party:

(i)         is dissolved;

(ii)        ceases to conduct all (or substantially all) of its business;

(iii)       is or becomes unable to pay its debts as they fall due;

(iv)       is or becomes insolvent or is declared insolvent; or

(v)        convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)       an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)        an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or

(d)       [if that other party is an individual:

(i)         that other party dies;

(ii)        as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)       that other party is the subject of a bankruptcy petition or order.]

21.5    The Licensor may terminate this Agreement immediately by giving written notice to the Licensee if:

(a)        any amount due to be paid by the Licensee to the Licensor under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and

(b)       the Licensor has given to the Licensee at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 22.5.

  1. Notices

22.1    Any notice given under this Agreement must be in writing, whether or not described as “written notice” in this Agreement.

22.2    Any notice given by the Licensee to the Licensor under this Agreement must be:

(a)        sent by recorded signed-for post;

(b)       sent by fax;

(c)        sent by email; or

using the relevant contact details set out in Clause 23.4.

22.3    Any notice given by the Licensor to the Licensee under this Agreement must be:

(a)        sent by recorded signed-for post;

(b)       sent by fax;

(c)        sent by email; or

using the relevant contact details set out in Clause 23.4.

22.4    The parties’ contact details for notices under this Clause 23 are as follows:

(a)        in the case of notices sent by the Licensee to the Licensor

(b)       in the case of notices sent by the Licensor to the Licensee info@auditus.com

22.5    The addressee and contact details set out in Clause 23.4 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 23.

22.6    A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

22.7    A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)        in the case of notices sent by post, 48 hours after posting;

(b)       in the case of notices sent by fax, at the time of the transmission of the fax (providing the sending party retains written evidence of the transmission);

(c)        in the case of notices sent by email, at the time of the sending of the email (providing that the sending party retains written evidence that the email has been sent); and

  1. Assignment

23.1    The Licensee hereby agrees that the Licensor must not assign, transfer or otherwise deal with the Licensor’s contractual rights and/or obligations under this Agreement without the prior written consent of the Licensee, such consent not to be unreasonably withheld or delayed, providing that the Licensor may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Licensor or to any successor to all or a substantial part of the business of the Licensor from time to time.

23.2    The Licensor hereby agrees that the Licensee must not assign, transfer or otherwise deal with the Licensee’s contractual rights and/or obligations under this Agreement without the prior written consent of the Licensor, such consent not to be unreasonably withheld or delayed, providing that the Licensee may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Licensee or to any successor to all or a substantial part of the business of the Licensee from time to time.

  1. No waivers

24.1    No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

24.2    No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

  1. Severability

25.1    If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

25.2    If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

  1. Third party rights

26.1    This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

26.2    The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.

  1. Variation

27.1    This Agreement may not be varied except by means of a written document signed by or on behalf of each party.

  1. Entire agreement

28.1    The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

28.2    Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.

  1. Law and jurisdiction

29.1    This Agreement shall be governed by and construed in accordance with English law.

29.2    Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

  1. Interpretation

30.1    In this Agreement, a reference to a statute or statutory provision includes a reference to:

(a)        that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)       any subordinate legislation made under that statute or statutory provision.

30.2    The Clause headings do not affect the interpretation of this Agreement.

30.3    References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.

30.4    In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

  1. Marketing

31.1    The Licensor reserves the right to use the Licensees logo or other aspects to promote its Software.