DEFINITIONS AND INTERPRETATION

In these Terms and Conditions, unless the context otherwise requires, the following terms shall have the following meanings:

“Commencement Date” means the commencement date set out in the Contract;

“Confidential Information” in relation to either party means information of a confidential or proprietary nature (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing has advised the other party is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential;

“Consultancy Services” means the provision or delivery of consultancy services in accordance with Clause 8;

“Contract” means the Customer’s purchase order and OSL’s acceptance of it, or the Customer’s acceptance of the Proposal under clause 2.2, incorporating these Terms and Conditions;

“Customer” means the person, firm or company who licenses the Software from OSL as detailed in the Contract;

“Deliverables” means those deliverables created, developed or otherwise resulting from the provision of the Consultancy Services and each of them is a “Deliverable”;

“Intellectual Property Rights” means all patents, trade marks, registered designs (and any applications for any of the foregoing), copyright, database right, unregistered design right, trade names, business names, rights in software, domain names, know-how and any other intellectual property right in each and every part of the world together with all applications, renewals, revisals and extensions;

“Licence Fee” means the licence fee for the Software payable by the Customer to OSL as detailed in the Contract;

“Object Code” means the machine readable or binary code version of the Software capable of executing on a computer;

“Proposal” means the proposal produced by OSL for the Customer in relation to licensing the Software;

“Purpose” means use of the Software in Object Code form for the Customer’s own internal business purposes and for no other purpose whatsoever;

“Services” means the Consultancy Services and the Training Services;

“Site” means the address(es) specified in the Contract;

“Software” means the Object Code version(s) of the computer program(s) listed in the Contract and any new Updates of the same made available by OSL to the Customer from time to time;

“Source Code” means the human readable code/version of the Software that is readable by the human eye to a person skilled in the art;

“OSL” means Optimise Solutions Limited, a company incorporated in Scotland under the Companies Acts with registered number SC119824 and having its registered office at 5 Straiton View, Straiton Business Parc, Edinburgh EH20 9QZ;

“Terms and Conditions” means these terms and conditions for the licence of the Software;

“Third Party Software” means any third party software provided by OSL;

“Training” means the provision and delivery of the training services set out in the Contract in accordance with Clause 7; and

“Update” means any new version, release, change, modification, enhancement and/or correction to any of the Software.

Clause headings are for ease of reference only and shall not affect the construction or interpretation of any clause. Words importing the singular shall include the plural and vice versa and words denoting any gender shall include all genders. References to legislation are to that legislation as amended or reenacted from time to time.

APPLICATION OF TERMS AND CONDITIONS

These Terms and Conditions shall:

apply to and be incorporated into the Contract; and

prevail over any inconsistent terms or conditions contained, or referred to, in the Customer’s purchase order, confirmation of order, acceptance of a quotation or specification, or implied by law, trade custom, practice or course of dealing.

The Customer’s purchase order, or the Customer’s acceptance of the Proposal, constitutes an offer by the Customer to licence the Software on these Terms and Conditions. No offer placed by the Customer shall be accepted by OSL other than:

by a written acknowledgement issued and executed by OSL;

by execution of the Proposal by OSL; or

(if earlier) by delivery of the Software by OSL in accordance with Clause 4

when a licence of the Software on these Terms and Conditions will be established. The Customer’s standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.

Proposals are issued by OSL on the basis that no Contract shall come into existence except in accordance with Clause 2.2. Any Proposal is valid for a period of 30 days from its date, provided that OSL has not previously withdrawn it.

LICENCE

OSL hereby grants to the Customer a non-exclusive, non-transferable licence to use the Software for the Purpose and for no other purposes whatsoever for the period of one year from the Commencement Date.

The licence is subject to auto-renewal annually, unless the customer has requested termination in writing prior to the end of the year. On the Commencement Date, an Annual Software Activation Key will be supplied by OSL that allows the software to operate for the period of one year for one concurrent user. On each anniversary of the Commencement Date, a new Annual Software Activation Key will be provided by OSL on payment of the next year’s Licence Fee.

The Licence Fee includes access to the OSL Helpdesk facilities for the period covered by the Licence, subject to the OSL Standard Maintenance and Support Terms and Conditions.

The Customer shall:

be entitled to make a back-up copy of the Software as may be reasonably necessary for its lawful use. Any such copy shall in all respects be subject to the Contract and shall be deemed to form part of the Software duly licensed;

keep the Software confidential and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the use of the Software;

reproduce on any back up copy of the Software OSL’s copyright and trade mark notices; and

notify OSL immediately if the Customer becomes aware of any unauthorised use of the whole or any part of the Software by any third party.

The Customer shall not:

permit additional users, other than the number of users listed in the Contract or such number of users as are otherwise agreed between the parties from time to time, to use the Software;

reverse engineer, decompile, copy, adapt, disassemble or modify the whole or any part of the Software except to the extent permitted under applicable law;

assign, transfer, sell, lease, rent, charge, sub-licence or otherwise deal in or encumber the whole or any part of the Software or use the whole or any part of the Software on behalf of any third party or make available the same to any third party without the prior written consent of OSL; or

remove or alter any copyright or other proprietary notice on any of the Software.

Subject to Clause 3.5, the Customer acknowledges and agrees that all copyright and other Intellectual Property Rights of whatever nature in and to the Software are the exclusive property of OSL.

Where OSL provides the Customer with access to Third Party Software, OSL warrants that it has acquired all necessary consents and permissions to allow the Customer to use such Third Party Software.

All rights not expressly granted by OSL to the Customer under the Contract are expressly reserved to OSL, and the Customer acknowledges and agrees that it has been granted no right or benefit under or pursuant to the Contract unless expressly stated.

DELIVERY OF SOFTWARE

OSL will deliver the Software to the Customer, either to the Site on a machine-readable medium or by electronic delivery.

SITE ACCESS

The Customer shall permit OSL, at all reasonable times and upon giving the Customer reasonable notice, to inspect and have access to the Site(s) at which the Software is being kept or used, and any records kept pursuant to the Contract, for the purposes of ensuring that the Customer is complying with the terms of the Contract.

ESCROW ARRANGEMENTS

OSL shall, at the Customer’s expense and request, enter into a Source Code Deposit Agreement under the standard terms and conditions of the National Computing Centre (NCC) Escrow Service.

TRAINING

The Customer acknowledges and agrees that users of the Software ought to be fully training before using the Software and OSL accepts no liability in relation to loss resulting from use of the Software by untrained users.

Suitably qualified OSL personnel shall provide the Training at such times and at such places as to be agreed between the parties in writing.

CONSULTANCY SERVICES

Where the Customer requests the provision of Consultancy Services in relation to bespoke modification/development of the Software, OSL shall provide such Consultancy Services at its sole discretion in accordance with its standard scale of charges in force from time to time.

For the avoidance of doubt such Consultancy Services shall not include the provision of maintenance and support services, which shall be provided in accordance with OSL’s Standard Maintenance and Support Terms and Conditions.

All Intellectual Property Rights in the Deliverables and all other output from the provision of the Consultancy Services shall belong to OSL and such Deliverables shall in all respects be subject to the Contract and shall be deemed to form part of the Software duly licensed.

LICENCE FEE AND PAYMENT FOR SOFTWARE

The Customer agrees to pay OSL the Licence Fee in accordance with the payment terms set out in the Contract.

Deposits are payable by the Customer to OSL when the Software is ordered and such deposits are non-refundable in all circumstances.

All fees are exclusive of VAT or other applicable local sales tax, which shall be charged at the prevailing rate from time to time.

If the Customer fails to pay any amount payable by it under the Contract within 28 days from the due date, OSL shall be entitled to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment in full (after as well as before judgement) at the rate of 4% per annum above the base rate for the time being of The Royal Bank of Scotland PLC. Such interest shall accrue on a daily basis and be compounded quarterly.

Time of payment shall be of the essence to this Contract and no payment shall be deemed to have been received until cleared funds have been received from the Customer.

If the Customer fails to pay any amount payable by it under the Contract, OSL shall retain the right to disable the Software and to stop providing any ongoing work under the Contract until such time as payment is made in full.

WARRANTIES

Subject to the exceptions set out in Clause 10.4, OSL warrants that:

the media upon which the Software is stored (if applicable) will, for a period of ninety (90) days from the Commencement Date, be free from defects in material design and workmanship; and

the Software will, for a period of ninety (90) days from the Commencement Date, conform in all material respects to OSL’s demonstration of the Software to the Customer prior to the Commencement Date and any specification of the Software provided to the Customer by OSL.

The Customer shall give notice in writing to OSL as soon as it is reasonably able upon becoming aware of any non-conformance with any warranty in Clause 10.1.

Subject to Clause 10.4, OSL shall remedy any breach of the warranties set out in Clause 10.1 by (i) using reasonable endeavours to repair any error in the Software or (ii) upon failure to repair or at OSL’s option, to replace such Software free of charge, and this shall be OSL’s sole liability and the Customer’s sole remedy in the event of such breach.

OSL shall have no liability to remedy any non-conformance with warranty or otherwise where such liability arises as a result of any of the following circumstances:

the improper use, operation or neglect of the Software by the Customer;

the modification of the Software or its merger (in whole or in part) with any other software by the Customer;

the failure by the Customer to implement recommendations in respect of or solutions to faults advised by OSL previously;

any repair, adjustment alteration or modification of the Software arranged by the Customer by any person other than OSL without OSL’s prior written consent; and

the use of the Software by the Customer for a purpose for which it was not designed and/or licensed.

Without prejudice to the foregoing OSL does not warrant that the operation of the Software will be uninterrupted or error free. The Customer accepts that the Software was not designed and produced to its individual requirements and that the Customer was responsible for its selection and its suitability for their business needs.

All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into the Contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including, without limitation, any implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.

INDEMNITY

Subject to Clause 12, OSL will indemnify and keep indemnified the Customer against any and all claims, action and proceedings brought against and all costs, damages, liabilities and expenses incurred by the Customer arising from any allegation that the Software or any part of it infringes the Intellectual Property Rights of any third party provided that:

the Customer (i) on becoming aware of the same shall promptly give notice of it to OSL; (ii) makes no admission of liability without OSL’s written consent; (iii) allows OSL on demand to have sole conduct and control of the defence and any related settlement negotiations; and (iv) gives OSL all reasonable cooperation, help and assistance in connection with the claim;

the infringement does not arise as a result of the use by the Customer of the Software in combination with any equipment or software not supplied or approved by OSL; and

OSL shall be entitled at its own cost to replace or modify infringing material so that it becomes non-infringing so long as the Software as so modified or replaced conforms in all material respects with the Published Manual.

Subject to Clause 12 the Customer will indemnify OSL in respect of any claim for loss, damage or injury of any person or property occasioned by the wrongful act, neglect or default of the Customer.

LIABILITY

Neither party shall exclude liability for death or personal injury caused by the negligence of that party or its agents acting within the scope of their duties.

The aggregate maximum liability of OSL under the Contract shall not in any circumstances exceed the total Licence Fee (including by way of indemnity) plus any other charges paid by the Customer to OSL under the Contract.

OSL shall, in no circumstances be liable to the Customer (including by way of indemnity) in respect of any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):

any, indirect, incidental, special or consequential loss or damage (whether or not such loss or damage is of the type specified in Clauses 12.3.2 to 12.3.10 below);

loss of actual or anticipated profits;

loss of goodwill;

loss of business;

loss of revenue or of the use of money;

loss of contracts;

loss of use or downtime;

loss of anticipated savings;

loss of or corruption to data (including software) or other information; and

damage relating to the procurement by the Customer of any substitute products or services.

Nothing in this Clause 12 shall apply so as to limit the Licence Fee payable to OSL under the Contract.

INSURANCE

OSL shall, whilst this Agreement subsists, maintain in force with a reputable insurance company such professional indemnity insurance cover, as OSL deem appropriate.

CONFIDENTIALITY

Both parties recognise the commercial importance of the others Confidential Information. The party receiving Confidential Information (“the Receiving Party”) will treat it as secret and confidential and will not use it for its own benefit or for the benefit of any other party or for any purpose other than those required or permitted by the Contract. The Receiving Party will not disclose any part of the Confidential Information to any third party without the express prior written consent of the party making the Confidential Information available (“the Disclosing Party”), other than to such of the Receiving Party’s employees who reasonably require to have same and who are bound by similar obligations of confidentiality.

The provisions contained in Clause 14.1 shall not apply:

to any of the information which is in or enters the public domain other than as a result of a breach of the Contract;

where the Receiving Party receives the information from a third party which is not under any obligation of confidence to the Disclosing Party;

where the information has been developed by the Receiving Party independently of the disclosure; and/or

to any information which is required to be disclosed by the courts or process of law.

Upon termination of the Contract or upon the Disclosing Party’s written request, the Receiving Party will return all the Confidential Information supplied to the Receiving Party by the Disclosing Party within twenty eight (28) days of such request. Each party may retain one copy of the Confidential Information but only if it requires to hold such information to ensure legal compliance with its obligations under the Contract including regulatory compliance.

This Clause 14 shall survive termination of the Contract howsoever arising.

TERM AND TERMINATION

The Contract shall commence on the Commencement Date and shall, subject as otherwise provided, continue indefinitely on an auto-renewal basis annually unless otherwise terminated in accordance with this Clause 15.

The Contract may be terminated by either party by written notice with immediate effect if:

either party shall fail to observe or perform any of its material obligations contained in the Contract;

either party commits a non material breach that it fails to remedy within thirty (30) days of being requested to do so by the other party; or

either party ceases to carry on its activities, becomes unable to pay its debts when they fall due, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt, an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or enters into liquidation whether compulsorily or voluntarily or shall suffer any analogous event under any jurisdiction which it is subject to.

CONSEQUENCES OF TERMINATION

On termination of the Contract howsoever arising, each party shall (except as otherwise agreed) promptly deliver up all documentation and other materials in its possession or under its control and belonging to the other party to that other party. Notwithstanding the generality of the foregoing, the Customer undertakes immediately to cease to use the Software and to delete, destroy or otherwise make permanently unusable the Software and all whole or partial copies of the Software within the Customer’s control or possession.

Within thirty (30) days of the date of such termination, the Customer shall certify to OSL in writing that it has fully complied with its obligations under Clause 16.1.

The Customer agrees that it will not at any time recreate or attempt to recreate the Software.

Termination of the Contract howsoever arising shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving termination.

FORCE MAJEURE

OSL reserves the right to defer the delivery of the Services/Software or to cancel or reduce the Services/licence (without liability to the Customer) where OSL is prevented or delayed from carrying out the Services/delivery of the Software due to circumstances out with OSL’s reasonable control. For the avoidance of doubt, nothing in this clause 17 shall excuse the Customer from any payment obligations under this Contract.

DATA PROTECTION

For the purposes of data protection legislation please note that by transacting with OSL the Customer accepts and agrees that personal information about the Customer or it’s employees as the case may be will be held on OSL’s computer system. The nature of OSL’s business may also mean that OSL must disseminate this information to third parties, and by accepting the Contract the Customer will be deemed to have consented to such dissemination. How we handle personal information is set out in our Privacy Policy Notice.

Where required to provide you with our Products or Services, OSL will on occasion have a need to process personal data that you hold in your database(s) or on your servers, such as your customers and suppliers. Any data collected will only be retained for as long as is necessary to allow OSL to deliver our Services. OSL will not make use of such data for marketing purposes.

ASSIGNATION

The Customer shall not, and shall not purport to, assign, charge or otherwise transfer the Contract or any rights or obligations under it without OSL’s prior written consent, which consent shall not be unreasonably withheld or delayed. Any such consent shall not excuse the Customer from performance of any obligation on its part to be performed.

NOTICES

Any notice under this Contract shall be given in writing and delivered by recorded delivery or personal delivery to the Customer at the address specified in the Contract, and to OSL at the address specified in the Contract, or such other address as may be notified to the sender in writing. Notices sent by recorded delivery shall be deemed to have been received forty eight (48) hours after sending (as shown by the senders receipt). Notices sent by personal delivery shall be treated as received at the time when left at the correct address of the recipient. If notice is left by personal delivery after the close of business on any given working day, it shall be treated as having been received at the opening of business on the next working day.

ENTIRE AGREEMENT

The Contract supersedes all prior agreements and arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to its subject matter.

In the event of any inconsistency between the Terms and Conditions and the Proposal the Terms and Conditions shall prevail.

SEVERABILITY

If any provision of the Contract is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.

INDEPENDENT CONTRACTORS

The parties are independent contractors and nothing in the Contract and no action taken by the parties pursuant to the Contract shall constitute, or be deemed to constitute, between the parties a partnership, association, joint venture or other co-operative entity.

WAIVER

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

THIRD PARTY RIGHTS

Save to the extent expressly set out in this Contract, this Contract is not intended nor shall it create any rights, entitlement, claims or benefits enforceable by any person that is not a party to it.

VARIATION

Any variation to the Contract shall only be effective if in writing and signed by both parties.

DISPUTE RESOLUTION

Any question, dispute or difference, which might arise relating to a technical issue in respect of the Software, shall on the application of either party be referred to a person or persons appointed by the parties hereto (the “Expert”). Failing agreement as to the appointment of the Expert, the President of the Law Society of Scotland shall appoint the same for the time being.

The Expert shall act as an expert and not as an arbitrator and shall give his decision in writing and if requested reasons thereof. In any event, the decision of such Expert shall be binding on the parties. The parties shall share the costs of the Expert equally, unless otherwise decided by such Expert.

The Customer shall make no announcement regarding the subject matter of the Contract without the prior written consent of OSL.

GOVERNING LAW

All matters relative to the Contract shall be governed and construed in all respects by Scots law and the parties hereby submit to the non-exclusive jurisdiction of the Scottish Courts.