Masstech Innovations
Master Services Agreement

This Master Services Agreement comprises the legal terms on which Masstech supplies software, hardware and/or services.

PARTIES

Customer: the legal entity recorded on the relevant Purchase Order
Supplier: unless provided otherwise on the relevant Purchase Order, the Supplier shall be one of:

Masstech Innovations Inc. (140 Allstate Parkway, Suite 101 Markham, ON L3R 5Y8), in respect of a Customer whose principal place of business is in Canada;
Masstech Americas Inc. (855 Village Centre Drive, # 175, St Paul, MN 55127), in respect of a Customer whose principal place of business is in the United States of America; or
Software Generation Limited (12 Fulcrum 2 Solent Way, Whiteley, Fareham, Hampshire, PO15 7FN, United Kingdom) in respect of a Customer whose principal place of business is outside of the United States of America and Canada.

TERMS AND CONDITIONS

1               INTERPRETATION
1.1           Definitions
In this Agreement the following words and expressions shall have the following meanings:
Beta Software
any software or services that have been identified as or comprise preview, pilot-test, beta functionality or pre-release features (or similar designations), offered by the Supplier to the Customer for optional use and evaluation, including any and all related components and documentation;
Change
any amendment to the Equipment, Software, Services or Charges or any material amendment to the Specification to be agreed in accordance with clause 11.2;
Change Order
an amendment to this Agreement documented in the form attached at Schedule 2;
Charges
the Supplier’s charges for the Equipment, Software and Services (as applicable) as set out in the Purchase Order, and any other consideration due to the Supplier under this Agreement;
Commissioned
means the system provided to the Customer utilising the Software has been successfully installed (meaning the system can be reasonably used, consistent with the functions described in the System Design Document) such that operational training on the system can begin;
Confidential Information
all information disclosed by or on behalf of a party (in whatever medium including in written, oral, visual or electronic form and whether before or after the date of this Agreement) including all business, financial, commercial, technical, operational, organisational, legal, management and marketing information;
Customer Dependencies
the tasks to be undertaken or the elements of the Equipment, Software or Services or matters the Equipment, Software or Services rely upon (including any content, branding, premises, access, connectivity, power or network infrastructure) to be provided by the Customer;
Defect
means, in relation to any Equipment, Software or Services, any default, error, or non-compliance with corresponding Specification.
Equipment
the physical equipment or hardware, which may include Third Party Materials, to be supplied by the Supplier to the Customer, details of which are set out in the Purchase Order;
Excluded Events
any Defect or outage, disruption or underperformance of the Services, the Equipment and/or the Software which is outside the reasonable control of the Supplier, including (without limitation) due to any or all of the following circumstances:

a)     the applicable Equipment or Software being operated or used by the Customer outside the Specifications or being used in combination with equipment or software not supplied by the Supplier;

b)     periods of general disruptions to data or internet networks or communication outside of the Supplier’s network and/or control;

c)     any failure in any of the Customer Dependencies and/or any equipment or aspect of the network or service provided by any third party;

d)     any element of the design, content or implementation of the Services, the Equipment and/or the Software which has been provided by or is subject to the specific approval of the Customer;

e)     failure by the Customer to implement any Updates or Upgrades provided by the Supplier or similar updates or upgrades provided by manufacturers of the Equipment or suppliers of Third Party Materials;

f)      the modification or alteration of the Equipment or the Software other than by the Supplier;

g)     the use by the Customer of Beta Software;

h)     general wear and tear in respect of the Equipment; and/or

i)      neglect or misuse of the Equipment and/or the Services.
Intellectual Property
all inventions, patents, utility models, designs (including rights relating to semi-conductor topographies), database rights, copyright and related rights (including moral rights), rights in get up and trade marks (in each case whether registered or unregistered), together with all rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature;
Licence Term
the period during which the Customer shall be entitled to use the Software as documented on the Purchase Order, or where no such period is documented, the relevant period shall be perpetual;
Purchase Order
a Purchase Order provided by the Supplier and signed by the Customer detailing the Equipment, Software and/or Services being supplied by the Supplier to the Customer;
Services
the services described in Purchase Order, which may include professional services relating to integration or installation of Equipment and Software and/or Support Services;
Software
means the software programs (other than any Beta Software) detailed in the Purchase Order to be provided by the Supplier to the Customer, which may include Third Party Materials;
Specifications
the description and/or standards agreed between the parties in respect of the Equipment, Software and/or Services, which shall comprise:

a)     the System Design Document; and 

b)     any description and/or standards set out in the Purchase Order.
Support Fee
the annual support fee for the Support Services, which:

a)     in respect of the first year shall be set out in the Purchase Order;

b)     in respect of subsequent years shall be the amount notified to the Customer by the Supplier at least thirty (30) days prior to the renewal date; and

c)     if no such amounts are set out or notified, shall be the Supplier’s then current annual support fee.
Support Services
support and maintenance services in relation to the Software provided in accordance with clause 8 and Schedule 1;
System Design Document
the system description agreed between the parties prior to a Purchase Order being provided which includes technical detail of the system to be provided to the Customer utilising the Software and/or any Equipment supplied hereunder;
Territory
the licensed territory in respect of the Software as described in the Purchase Order, or where none is stated, the country in which the Software is installed by the Customer;
Third Party Materials
any elements of the Software, Equipment and/or Services provided by a third party, which may include third party or open source software (as described by the Open Source Initiative (http://opensource.org) and the Free Software Foundation (http://www.fsf.org))
Trial Period
where applicable, the period during which the relevant Beta Software is made available by the Supplier to the Customer;
Update
means any modification or addition which, when made or added to the Software, corrects errors or provides minor functionality enhancements, but does not change overall utility, functional capability, or application. Such “Updates” shall include all bug fixes, patches and maintenance releases and error corrections;
Upgrade
means an addition of one or more functions or modifications of the most recent version of the Software with the objective to offer new, or improved features or functionalities; and
Warranty Period
a period of one (1) year from the earlier of:

a)     the date the Software is Commissioned; and

b)     the date that is three (3) months after the date of the Purchase Order under which the relevant Software is supplied.

 1.1           Construction
1.1.1              Any phrase in this Agreement introduced by the term include, including, in particular or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term.
1.1.2              Any obligation on a party not to do something shall include an obligation not to allow that thing to be done.
1.1.3              Headings used in this Agreement are for reference only and shall not affect its construction or interpretation.
2               STATUS OF AGREEMENT
2.1           This Agreement comprises the relevant Purchase Order, these terms and conditions, the schedules to these terms, the relevant System Design Document and any documents expressly incorporated by any of those documents.
2.2           The Agreement shall prevail over any terms or conditions contained, or referred to, in any purchase order, confirmation of order, acceptance of a quotation provided by the Customer or any inconsistent terms or conditions implied by law, trade custom, practice or course of dealing and all such terms not set out in this Agreement are fully excluded.
3               SUPPLY AND ACCEPTANCE
3.1           The Supplier agrees to provide the Software, the Equipment and the Services (as applicable) subject to the terms and conditions of this Agreement.
3.2           Acceptance of the Software, the Equipment and the Services (as applicable) by the Customer shall, unless the Supplier has received a written notice setting forth a reasonable detailed basis for rejection, occur:
3.2.1              in respect of the Software and/or the Equipment that is not to be installed by the Supplier as part of the Services, twenty four (24) hours from delivery to the Customer;
3.2.2              in respect of the Software and/or the Equipment that is to be installed by the Supplier as part of the Services, at the time the relevant Equipment and/or Software is deemed Commissioned; and
3.2.3              in respect of the Services, twenty four (24) hours from the date they are performed.
3.3           The Customer agrees that it may only reject a particular element of the Software, the Equipment and the Services (as applicable) if such element does not materially comply with its Specification and such failure is not due to an Exception Condition.
3.4           In event the Customer is entitled to and rejects a particular element of the Equipment, the Software and the Services, as the Customer’s sole and exclusive remedy, the Supplier shall at its option repair, replace or re-perform the relevant element within a reasonable time from such rejection in accordance with the terms of this Agreement or refund the Charges paid by Customer in respect of any element of the Equipment, Software and Services which is not repaired, replaced or re-performed.
4               EQUIPMENT
4.1           The Supplier shall deliver the Equipment upon the date and within the time specified in the Purchase Order (or if no date is specified, within a reasonable period from acceptance of the signed Purchase Order), but any dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement. 
4.2           Unless otherwise specified in the Purchase Order:
4.2.1              the Equipment shall be delivered F.C.A. (as such term is defined by Incoterms 2010) Plant, Markham, Ontario Canada;
4.2.2              risk and title in the Equipment shall pass to the Customer on delivery to the freight carrier; and
4.2.3              the Customer shall be responsible for all transportation, insurance, import duties and customs charges. 
4.3           The Supplier shall pass on to the Customer the benefit of any warranties that the Supplier obtains from the original equipment manufacturer in respect of the Equipment   Extended warranty cover can be purchased by the Customer direct from the relevant original equipment manufacturer but, unless expressly stated as being included on the Purchase Order, the Supplier shall have no responsibility for arranging such cover.
4.4           The Customer agrees that:
4.4.1              the Equipment is manufactured by third parties and the Supplier gives no guarantee or warranty that the Equipment will comply with the Specification or be free from Defects (including where such non-compliance is due to any Excluded Events);
4.4.2              save in respect of the pass through of original equipment manufacturer warranties set out in clause 4.3, the Supplier provides no other (express or implied) conditions, warranties or other terms and representations in relation to the Equipment provided by the Supplier hereunder and all implied warranties are hereby excluded to the fullest extent permitted by law.
5               SOFTWARE
5.1           Subject to the Customer’s compliance with this Agreement, the Supplier grants to the Customer a non-exclusive, non-transferable, non-sub-licensable and non-assignable, perpetual licence to the Software in the Territory for the Licence Term solely for the Customer’s internal business purposes, including for the purposes of receiving the benefit of the Equipment and Services hereunder.
5.2           For the avoidance of doubt, nothing in this Agreement grants the Customer access to the Software source code and except for those rights specifically granted in this Agreement, the Supplier reserves all right, title and interest in and to the Software and any related documentation.
5.3           Subject to clauses 5.4.4 and 5.5, the Supplier warrants to the Customer that during the Warranty Period the Software shall perform substantially in accordance with the relevant Specifications.
5.4           The Supplier agrees that:
5.4.1              during the Warranty Period, the Supplier shall, at no additional cost for the Customer and in timely manner, correct any material Defects in the Software, except where such failure is the result of any Excluded Events;
5.4.2              the Supplier makes no express or implied warranty that it will be able to remedy any Defect in a timely manner or at all, provided that the Supplier will use commercially reasonable efforts to resolve the Defect as expediently as possible and inform the Customer of any interim work-around, preferred operational procedures, and expected timeline for resolution;
5.4.3              corrected Software will be warranted for the remaining duration of the initial Warranty Period for the Software that has been corrected;
5.4.4              the Supplier’s full liability and the Customer’s sole remedy in relation to the Software provided under this agreement (including in respect of the express warranty set out in clause 5.3) shall be the correction obligations of Supplier set out in clause 5.4.1 and the Customer shall in no circumstances be entitled to damages or any other rights or remedies in respect of a failure of the software to comply with the relevant Specifications and be free from Defects whether during or after the relevant Warranty Period; and
5.4.5              any requests from Licensee for new features or product enhancements are not considered items subject to the warranty under clause 5.3 and may be subject to additional, custom or non-recurring charges. The Supplier shall not be held liable for any damages that may result from the implementation and use of such new features or product enhancements.
5.5           Except as expressly set out in clause 5.3, the Supplier expressly disclaims all express or implied conditions, warranties or other terms and representations in relation to the Software.  While the Supplier shall take reasonable steps to ensure the that the Software will be free from viruses, including scanning the Software using virus scanning software, the Supplier does not warrant that the operation of the Software will be uninterrupted or error-free, or that use by the Customer of the Supplier with any other software or hardware will not cause any disturbance to the Software or to such other software or hardware.  The Customer acknowledges that the Software, including any Third Party Materials incorporated into the Software, is provided “as is” and the Supplier shall not be responsible for any failure of the Software to comply with the Specification where such failure is the result of any Excluded Events.   The entire risk as to the quality of the Software, or arising out of the use or performance of the Software, remains with the Customer.
5.6           The Supplier may, at its discretion, make available Updates or Upgrades to the Software and, in such event, all of the licensed rights and the provisions of this clause 5 shall also apply to any Updates or Upgrades to the Software provided by the Supplier to the Customer during the term of this Agreement. 
5.7           Where the Supplier considers Updates or Upgrades are necessary or desirable for maintaining functioning or security of the Software, the Customer shall facilitate the implementation of such Updates or Upgrades in accordance with the reasonable instructions of the Supplier.
5.8           The Customer agrees that it will:
5.8.1              not copy or reproduce the whole or any part of the Software (save to the extent permitted by applicable law);
5.8.2              except as required to be permitted by law, not (and will not attempt to or allow any third party to or attempt to) copy, adapt, alter, amend, modify, reverse engineer, decompile, disassemble or decode the whole or any part of the Software or translate the whole or any part of the Software into another digital language;
5.8.3              not, nor allow any third party to, copy, make error corrections or to otherwise modify and/or enhance the Software nor create derivative works based upon the Software;
5.8.4              notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person (including its personnel); and
5.8.5              not change the location at which the Software is installed without prior approval of the Supplier (such approval not to be unreasonably withheld).  Any warranty obligations of the Supplier under clause 5.3 and/or support obligations under clause 8, may be voided at the Supplier’s reasonable discretion if a substantial move or a significant environmental change occurs without the Supplier’s prior approval (such approval not to be unreasonably withheld).       
6               BETA SOFTWARE
6.1           Where the Supplier makes Beta Software available to the Customer, the Customer’s access to and use of such Beta Software shall be on and be subject to the terms of the Beta Software Licence in Schedule 3.
6.2           The provisions of clauses 5.3 – 5.5 (warranties), clause 7 (services), clause 8 (support) and Schedule 1 (support services) of this Agreement shall not apply in relation to the Beta Software and any resulting data.
7               SERVICES
7.1           The Supplier shall provide and the Customer shall receive the Services on the terms set out in this Agreement. 
7.2           The Supplier warrants that it will:
7.2.1              perform the Services with reasonable skill and care;
7.2.2              use personnel who are suitably skilled and experienced to perform tasks assigned to them;
7.2.3              use reasonable endeavours to ensure that the Services conform in all material respects with the Specification; and
7.2.4              use reasonable endeavours to meet any agreed performance dates, but any dates shall be estimates only and time for performance by the Supplier shall not be of the essence of this Agreement.
7.3           For any breach of the warranty in clause 7.2, the Customer’s exclusive remedy, and the Supplier’s sole obligation, shall be:
7.3.1              re-performance of the Services by the Supplier so that such Services comply with the warranty or
7.3.2              if the Supplier determines that it is unable to perform the Services so that such Services comply with the warranty, the Customer shall be entitled to a pro-rata refund of the relevant Charges actually paid to the Supplier for the portion of the Services that do not comply with such warranty.
7.4           If, as a result of any act or omission by the Customer or its agents (howsoever caused) which is not directly and wholly caused by the Supplier (including the provision of any incorrect or inadequate information or data by the Customer or failure of the Customer to provide any of the Customer Dependencies) or as a result of any Excluded Events, the Supplier is prevented or delayed from performing any of its obligations under this Agreement or the cost of such performance increases, then:
7.4.1              the time for performance of the Supplier’s obligations shall be extended for a reasonable period; and
7.4.2              the Supplier shall have no liability to the Customer in respect of such failure to perform.
8               SUPPORT
8.1           During the period for which the Customer is entitled to Support Services (as determined in accordance with clause 8.2), the Supplier shall provide Support Services in respect of the relevant Software. 
8.2           Unless otherwise provided in the relevant Purchase Order (including where the Customer purchases multi-year Support Services in accordance with clause 8.6), the Supplier shall provide the Support Services for an initial period of one (1) year (“Initial Term”) from the earlier of (i) the date the Software is Commissioned; and (ii) the date that is twelve (12) months after the date of the Purchase Order under which the relevant Software is supplied.  Thereafter (and unless the Customer purchases multi-year Support Services in accordance with clause 8.6), the Support Services will renew for successive one (1) year terms (each a “Renewal Term”) subject to the payment by the Customer of the then applicable Support Fee, unless either party gives the other party notice of its intention not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. 
8.3           Support Fees will be due and payable:
8.3.1              in respect of the Initial Term, on the date stated in the Purchase Order (with the relevant Support Fees being included in the Charges for the Software); and
8.3.2              in respect of each Renewal Term, no later than the last day of the Initial Term or the immediately preceding Renewal Term as applicable.
8.4           If the Customer discontinues the Support Services or fails to pay the applicable Support Fee at the applicable time then the Supplier shall no longer provide the Support Services and to re-instate the Support Services the Customer must pay the sum of (i) the Support Fee for the then current period, plus (ii) reinstatement fees as defined by the Supplier’s then current reinstatement policies.  Additional reinstatement fees may be required for accompanying third-party software.
8.5           In addition to the Support Fees, in connection with the provision of the Support Services:
8.5.1              any actual reasonable travel, lodging, auto, and meal expenses incurred by the Supplier will be charged to the Customer; and
8.5.2              any on-site Customer Service Engineer time will be charged at the Supplier’s then current published time and materials rate (and in all instances, with a minimum one-day charge).
8.6           It is acknowledged that the Supplier may offer multi-year Support Services where the term of such Support Services exceeds 12 months.  Such multi-year term may be offered upon purchase of the Software or at expiry of the Initial Term or any Renewal Term of the Support Services under clause 8.2.  Where the Customer purchases multi-year Support Services the duration of such multi-year Support Services shall be documented in the Purchase Order (such period being the “Multi-Year Term”) and the parties agree that:
8.6.1              during the Multi-Year Term, save as provided in clause 8.6.4, the annual Support Fee payable by the Supplier shall remain fixed as specified in the Purchase Order (and not subject to increase in accordance with clause 8.2 until the expiry of the Multi-Year Term);
8.6.2              the Supplier shall provide the Customer with an invoice in respect of the applicable Support Fee annually in advance during the Multi-Year Term, with such invoice due and payable no later than the relevant anniversary of the start of the Multi-Year Term;
8.6.3              the Customer agrees to pay the Support Fee for all years of the Multi-Year Term and shall not be entitled to cancel the Support Service during such Multi-Year Term;
8.6.4              if during the Multi-Year Term the Customer purchases additional Software, the applicable Support Fee may be increased to reflect the Support Services to be provided in respect of such additional Software and any such increase shall be documented in the relevant Purchase Order for such additional Software; and
8.6.5              at the expiry of the Multi-Year Term, unless another Multi-Year Term is agreed or either party gives the other party notice of its intention not to renew at least thirty (30) days prior to the expiration of the Multi-Year Term, the Support Services will renew for a one (1) year Renewal Term in accordance with clause 8.2.
8.7           Save where the Customer has purchased Support Services as documented in the Purchase Order, the Supplier is not obligated to provide any maintenance or technical support for the Software.
9               DATA
9.1           The parties do not anticipate that the provisions of the Equipment, Software or Services will involve the generation or processing of any personal data by the Supplier.
9.2           To the extent the use of the Equipment, Software or Services generates personal data relating to the business of the Customer, the parties agree that:
9.2.1              such personal data shall be collected by and be held on the IT systems of the Customer; and
9.2.2              for the purposes of applicable data protection laws, the Customer shall be the data controller of any such personal data and the Supplier shall have no obligations or liability in respect of such personal data.
10            PUBLICITY
10.1        The Supplier may disclose on the Supplier’s website, in Supplier’s published client list or within other promotional material the name of the Customer and the fact that the Supplier supplies Software, Equipment and/or Services to the Customer. The Customer consents to such public disclosure and agrees that the fact the parties have entered into this Agreement shall not constitute Confidential Information.
11            CHANGES
11.1        The parties acknowledge that changes to the Specifications may be required during the course of performance of this Agreement.  Subject to clause 11.2, the parties may agree operational changes to the Specifications (which changes are not material and do not reduce the scope of the Services) without formally amending this Agreement in writing.  The parties agree that any amendment to the Charges, shall be subject to the provisions of clause 11.2.
11.2        Where any change to the Specification or this Agreement would result in a material increased cost to the Supplier in providing the Equipment, Software and/or Services under this Agreement or would result in a material change to the Specification, such change shall only take effect where a Change Order is expressly agreed in writing by authorised representatives of both parties in accordance with the process set out in Schedule 2.  Any such changes which are not agreed in a signed Change Order shall not be binding on either party.
12            CUSTOMER OBLIGATIONS
12.1        In addition to its other obligations set out in this Agreement, the Customer shall:
12.1.1           approve in a timely manner any elements of the Services which are stated in the Specification as being subject to the approval of the Customer;
12.1.2           provide the Customer Dependencies;
12.1.3           provide any necessary information or assistance (including access to the Supplier’s premises) as the Supplier may reasonably require in a timely manner; and
12.1.4           comply fully with all relevant export laws and regulations (including those of the United States of America) to ensure that the Equipment and Software are not exported or re-exported directly or indirectly in violation of those laws or used for any purposes prohibited by those laws.
13            CHARGES AND PAYMENT
13.1        In consideration of the provision of the Services, the Customer shall pay to the Supplier the Charges.  Unless specified otherwise in the Purchase Order, the Customer shall also reimburse to the Supplier costs and expenses incurred by the Supplier in the performance of the Services.
13.2        All Charges are expressed exclusive of VAT.  The Customer shall pay to the Supplier, in addition to the Charges, the amount of VAT (if any) which is properly chargeable by the Supplier to the Customer on or in respect of the Charges and any VAT will be billed as a separate item to the Customer on the invoice unless Customer provides a valid exemption certificate or direct payment permit prior to shipment.  In this clause, VAT means any distribution, export, franchise, goods and services, import, occupation, purchase, sale, use, value or value added tax and any similar federal, provincial, state or local tax, tariff, charge, duty, impost, levy or indirect tax.
13.3        The Customer shall pay all Charges to the Supplier on or before the dates specified in the relevant Purchase Order, provided that where no such dates for payment as specified, payment shall be made in full:
13.3.1           for Charges in respect of Software, within thirty (30) days of the date of an invoice provided by the Supplier;
13.3.2           for Charges in respect of Equipment, prior to delivery of the Equipment to the Customer;
13.3.3           for Charges in respect of Support Services, in accordance with clause 8.3; and
13.3.4           for Charges in respect of other Services, within thirty (30) days of the date of an invoice provided by the Supplier.
13.4        The time for payment of the Charges shall be of the essence of this Agreement.
13.5        All payments shall be made by the Customer in the currency specified on the Purchase Order by wire transfer to such bank account as the Supplier may from time to time notify in writing to the Customer.
13.6        If payment is not made in full by the due date and there is no bona fide dispute in relation to the whole of the amount unpaid, the Supplier shall, without prejudice to any other rights or remedies, have the right to:
13.6.1           suspend the supply of the Equipment, Software and/or Services;
13.6.2           charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent (4%) per annum above the Barclays Bank base rate from time to time (or such other bank as the Supplier may from time to time specify), until payment.
13.7        The Charges are Confidential Information and shall be treated as such in accordance with clause 14.
13.8        All Charges shall be paid gross, free and clear of any rights of counterclaim or set-off and without any deduction or withholding.   If any deduction or withholding is required by law, then the Customer shall pay such additional amount as shall be required to ensure that the net amount received and retained (free of any liability) by the Supplier equals the full amount which would have been received by it had no such deduction or withholding been required.
14            CONFIDENTIALITY
14.1        Each party shall use the Confidential Information of the other party disclosed to it (by whoever disclosed) only for the proper performance of its duties under the Agreement and shall not without the disclosing party’s written consent disclose or permit the disclosure of the Confidential Information except in confidence for the proper performance of its duties under the Agreement to those of its employees, officers and professional advisers who need to have access to it.
14.2        Each party shall take all reasonable precautions (and at least as great as those it takes to safeguard its own confidential information) to safeguard every part of the Confidential Information.
14.3        The provisions of clause 14.1 shall not apply to Confidential Information that:
14.3.1           the receiving party can prove, using written records, was known to the receiving party or in its possession before that information was acquired from, or from some person on behalf of, the disclosing party;
14.3.2           is in or enters the public domain through no wrongful default of the receiving party or any person on its behalf, provided that this clause 14.3.2 shall only apply from the date that the relevant Confidential Information enters the public domain;
14.3.3           the receiving party receives from a third party without similar obligations of confidence in circumstances where the third party did not obtain that information as a result of a breach of an obligation of confidence; or
14.3.4           is required to be disclosed by any applicable law or by order of any Court of competent jurisdiction or any government body, agency or regulatory body, to the extent of the required disclosure.
14.4        Within three days of receipt of a request to do so made at any time and in any event if the Agreement is terminated, the receiving party shall promptly return or, to the extent technically and commercial feasible, destroy (at the option of the disclosing party) all Confidential Information of the disclosing party.
15            INTELLECTUAL PROPERTY
15.1        Subject to clause 15.2, as between the Supplier and the Customer, all Intellectual Property in the Equipment, the Software and all Intellectual Property in any materials provided to the Customer or created by Supplier in the course of the Services which subsists now or at any time in the future shall be the exclusive property of the Supplier (or the Supplier’s licensors or suppliers).  To the extent that any Intellectual Property created in the course of the Services vests in the Customer, the Customer assigns (by way of assignment of present and future rights) without payment all such Intellectual Property to the Supplier with full title guarantee.  If the Customer is unable to assign such Intellectual Property (because the laws in another country differ from English law and do not permit such assignment), the Customer shall immediately on request execute all documents that may be necessary to effect the transaction that most closely resembles the commercial intent of an assignment and is permitted in the relevant territory.  Pending the above assignments and remaining formalities relating to such assignments, the Customer shall hold all such Intellectual Property on trust for the Supplier.
15.2        To the extent the Customer provides any materials to the Supplier (including content and/or branding provided by the Customer for incorporation into the Services):
15.2.1           as between the Supplier and the Customer, any Intellectual Property in such materials which subsists now or at any time in the future shall be the exclusive property of the Customer; and
15.2.2           the Customer warrants that use of such materials by the Supplier in providing the Services will not infringe the Intellectual Property or any other right of any third party.
15.3        The Supplier shall have no liability for any claim, proceeding, loss, liability, fine, cost and expense (including court costs and reasonable legal fees) incurred by the Customer as a result of any claim by a third party alleging that use of all or any part of the Equipment, the Software and/or the Services infringes any Intellectual Property of the third party to the extent such claim arises as a result of:
15.3.1           any Third Party Materials;
15.3.2           any Excluded Events; and/or
15.3.3           any materials provided by the Customer to the Supplier.
16            DISCLAIMER AND LIMITATION OF LIABILITY
16.1        Nothing in this Agreement shall limit the liability of the Supplier to the Customer for:
16.1.1           death or personal injury resulting from its negligence;
16.1.2           fraudulent misrepresentation; or
16.1.3           any liability which cannot be excluded by law.
16.2        Subject to clause 16.1, the following provisions set out the limitations on the liability of the Supplier (including any liability for the acts and omissions of its respective employees, agents and sub-contractors) to the Customer with respect to:
16.2.1           any breach of its contractual obligations arising under or in connection with this Agreement including the Supplier’s deliberate repudiatory breach; and
16.2.2           any representation, statement, act or omission given, made or carried out under or in connection with this Agreement (whether such liability arises in contract, tort (including negligence and negligent misstatement), misrepresentation, breach of statutory duty or otherwise howsoever).
16.3        Except as expressly set forth in this Agreement, all conditions, warranties and other terms and all representations expressed or implied by statute, common law or otherwise with respect to the Equipment, Software and Services are excluded to the fullest extent permitted by law.
16.4        In no event shall the Supplier be liable for any tortious loss (including negligence and negligent misstatement), misrepresentation, breach of statutory duty or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Supplier is advised of the possibility of loss, liability, damage or expense):
16.4.1           loss of revenue;
16.4.2           loss of actual or anticipated profits (including for loss of profits on contracts);
16.4.3           loss of the use of money;
16.4.4           loss of anticipated savings;
16.4.5           loss of sales or business;
16.4.6           loss of operating time or loss of use;
16.4.7           loss of opportunity;
16.4.8           loss of or damage to goodwill or reputation;
16.4.9           loss of, damage to or corruption of data; or
16.4.10        any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 16.4.1 – 16.4.9).
16.5       Except as stated in clause 16.1, the aggregate liability of the Supplier to the Customer, whether in contract or tort (including negligence and negligent misstatement) or for misrepresentation, breach of statutory duty or otherwise arising under or connection with this Agreement (including under any indemnity and any liability for recovery of sums paid by the Customer and for all damages, costs and expenses) with respect to all claims arising under or in connection with this Agreement shall be limited to an amount not exceeding one hundred per cent (100%) of the Charges paid by the Customer in respect of the twelve (12) months prior to the event (or first of the series of events) which gave rise to the claims.
16.6        Unless waived in writing by the Supplier, no claim, regardless of form, arising out of or pertaining to this Agreement may be brought by the Customer unless the Customer has provided to the Supplier written notice of the claim within twelve (12) months of the date on which the Customer first became aware or could reasonably have been expected to become aware of the cause of action.
17            TERMINATION
17.1        Without prejudice to any other rights or remedies of the Supplier, the Supplier may terminate this Agreement with immediate effect by written notice if the Customer fails to pay all or any Charges by the due date (save to the extent that there is a bona fide dispute in relation to the whole of the amount unpaid) and continues to fail to pay such sums for 14 days after receipt of written notice to do so from the Supplier.
17.2        This Agreement may be terminated:
17.2.1           immediately by either party on written notice, if the other is in material breach of an obligation under this Agreement (other than as mentioned in clause 17.1) and in the case of any such breach capable of remedy has failed to remedy the breach within a period of 30 days after receipt of written notice to do so;
17.2.2           immediately by either party on written notice:
(a)            the other party (i) is unable to pay its debts as they fall due or admits inability to pay its debts, (ii) passes a resolution for winding up (other than for the purpose of a  solvent amalgamation or reconstruction) or has an order to that effect made by a court of competent jurisdiction, (iii) enters into a composition or scheme of arrangement or voluntary arrangement with its creditors or has a receiver, manager, liquidator, administrator or administrative receiver is appointed over any of its assets, or (iv) ceases or threatens to cease to do business; or
(b)            notice of intention to appoint an administrator over the assets of the other party is given by any person or an application is made to court or an order is made for the appointment of an administrator over the assets of the other party; or
(c)            an analogous event to those in paragraphs (a) or (b) occurs to the other party in any jurisdiction.
17.3        Where the Supplier is entitled to terminate the Agreement under this clause 17, the Supplier shall, without prejudice to any other right or remedy (including the right to terminate the Agreement), have the right to suspend the provision of the Equipment, Software and/or Services.
17.4        Termination of this Agreement for any reason, whether under this clause 17 or not, shall be without prejudice to the accrued rights and liabilities of the parties on the date of termination.
17.5        Upon the termination of this Agreement for any reason:
17.5.1           unpaid invoices rendered by the Supplier in respect of the Services shall become immediately payable by the Customer; and
17.5.2           the Supplier shall, without prejudice to any other right or remedy of either party, be entitled to invoice the Customer for a fair and reasonable proportion of the Charges for Equipment, Software and/or Services provided by the Supplier prior to the date of termination (which may include a pro rata proportion of Charges stated in the Purchase Order).
18            GENERAL
18.1        Subcontracting and Assignment
18.1.1           The Supplier may sub-contract to any other person the performance of any of the obligations undertaken by it and exercise any of the rights granted to it.
18.1.2           Neither party shall without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) assign, transfer (in whole or in part), charge, declare a trust over or deal in any manner with this Agreement or the benefit or burden of or the rights under this Agreement.
18.2        Force Majeure
18.2.1           Neither party shall be liable to the other party for any delay or non-performance of its obligations under this Agreement to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control (whether involving the workforce of the party affected or any other party) including failure of a utility service or transport network, act of God, war or terrorist activity, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, any action taken by a governmental or public authority of any kind (including not granting a consent, exemption, approval or clearance), an event of national significance (including any day of national mourning), accident, breakdown of plant or machinery, power failure, fire, flood, storm or default of suppliers or subcontractors.
18.2.2           Such delay or non-performance shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for ninety (90) days or more, the party not affected may, at its option and if in its opinion it is reasonable for it to do so, terminate this Agreement by giving fourteen (14) days written notice of such termination to the other party.
18.3        Amendments
No amendment of this Agreement shall be effective unless it is in writing and signed by or on behalf of each of the parties.
18.4        Waivers and Remedies
18.4.1           Except as otherwise stated in this Agreement, the rights and remedies of each party under this Agreement:
(a)            are in addition to and not exclusive of any other rights or remedies under this Agreement or the general law; and
(b)            may be waived only in writing and specifically.
18.4.2           Delay in exercising or non-exercise of any right under this Agreement is not a waiver of that or any other right.
18.4.3           Partial exercise of any right under this Agreement shall not preclude any further or other exercise of that right or any other right under this Agreement.
18.4.4           Waiver of a breach of any term of this Agreement shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
18.5        Severance
If any provision of these Agreements is held by any court or other competent authority to be void or unenforceable in whole or in part, it shall continue to be valid as to the other provisions thereof and the remainder of the affected provision.
18.6        Entire Agreement
18.6.1           This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes and extinguishes any prior drafts, agreements, undertakings, understandings, promises or conditions, whether oral or written, express or implied between the parties relating to such subject matter.
18.6.2           Each party acknowledges to the other that it has not been induced to enter into this Agreement by, nor has it relied upon, any representation, promise, assurance, warranty or undertaking (whether in writing or not) by or on behalf of the other party or any other person save for those contained in this Agreement.  Accordingly, each of the parties acknowledges and agrees that the only remedy available to it in respect of the subject matter of this Agreement shall be for breach of contract under the terms of this Agreement and it shall have no right of action against any other party in respect of any such representation, promise, assurance, warranty or undertaking.
18.6.3           Nothing in this Agreement shall exclude liability for fraud or fraudulent misrepresentation.
18.6.4           In the event of a conflict between any of the terms of this Agreement, the conflict shall be resolved according to the following descending order of priority, (i) the clauses of this Agreement, then (ii) the Purchase Order.
18.7        Survival of Obligations
Notwithstanding any provision of this Agreement to the contrary, the provisions of clauses 14, 15, 16, 17 and this 18 and any other clauses which expressly or impliedly survive termination of this Agreement for any reason whatsoever shall continue in full force and effect after termination.
18.8        No Partnership/Agency
Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.
18.9        Rights of Third Parties
A person who is not a party has no rights to enforce, or to enjoy the benefit of, any provision of this Agreement, provided that any affiliate of the Supplier (being any subsidiary or holding company of the Supplier from time to time, and any subsidiary of a holding company of the Supplier from time to time) shall be entitled to exercise and enforce the rights granted to the Supplier and the obligations owed to the Supplier under this Agreement.
18.10     Notices
All notices between the parties with respect to the Agreement shall be in writing and signed by or on behalf of the party giving it. Any notice shall be duly served: (i) on delivery if delivered by hand; (ii) forty eight (48) hours after sending if sent by first class post or recorded delivery; or (iii) on sending if sent by email (provided that a copy is also sent by post in accordance with (ii) above), provided that in each case the notice is sent to the address of the addressee set out in the Agreement (or such other address as the addressee may from time to time have notified for the purpose of this clause).
18.11     Governing Law
18.11.1        This Agreement and any dispute or claim arising out of or in connection with it (including any non-contractual claims or disputes) shall be governed by and construed in accordance with the laws of the Jurisdiction (as defined below) and the parties irrevocably submit to the exclusive jurisdiction of the courts of the Jurisdiction. 
18.11.2        In this clause, ‘Jurisdiction’ means:
(a)            where this Agreement is entered into as the Supplier by Masstech Innovations Inc., Canada;
(b)            where this Agreement is entered into as the Supplier by Masstech Americas Inc., Delaware, USA; and
(c)            in all other cases, England.

SCHEDULE 1 – SUPPORT SERVICES

 1               PROVISION OF SUPPORT SERVICES
1.1           The Support Services shall be provided where the Customer has purchased Support Services and paid the relevant Support Fee.
1.2           The Supplier offers two levels of Support Services;
1.2.1              Gold; and
1.2.2              Silver
1.3           The Supplier shall provide the support level to the Customer indicated on the relevant Purchase Order.
2               DESCRIPTION OF SUPPORT SERVICES
2.1           The Support Services shall apply to the Software provided by the Supplier to the Customer.  The Supplier shall provide support and problem resolution services concerning:
2.1.1              troubleshooting of the Software; and
2.1.2              cases where the Software is not functioning in accordance with the Specification.
2.2           The Support Services shall comprise of the following elements:

2.3           The Supplier will, using its reasonable discretion, give appropriate priority to support requests based on its assessment the severity of the issue.  Critical issues are addressed as they occur and take precedence over other non-critical situations.
2.4           Logging of calls and/or bug(s) into the Supplier’s database for problem tracking and resolution as appropriate;
2.5           The Supplier’s service personnel may access the Customer’s systems remotely to diagnose and resolve issues.
2.6           Notification, as appropriate, whenever a major new Software release is available, detailing new features, enhancements, and bug fixes.
2.7           Where appropriate, reasonable troubleshooting time at the Customer’s facility, which may include customer support and engineering laboratory time.  The Supplier shall not be obliged to provide on-site support to the Customer and any such on-site support shall be chargeable as a separate provision of professional Services by the Supplier (subject to such terms and Charges as are agreed between the parties)
2.8           New Software Updates, which correct minor limitations of the software.
3               SUPPORT PROCEDURE.
3.1           Technical support is as specified in section 2 above. All calls and emails will be received at the first level by the Supplier’s Support Call Center and escalated and dispatched to on call engineers as is deemed appropriate and necessary. A return call will be made within a reasonable period of time by a support engineer to help diagnose the problem and restore operations as best as possible to its commissioned  state.
3.2           Major work on the system or environment will not be undertaken by engineers within 60 days of the support renewal date, until the support contract has been renewed. Standard support activities are not restricted by this clause.  Any such out of scope major work shall be chargeable as a separate provision of professional Services by the Supplier (subject to such terms and Charges as are agreed between the parties)
4               SUPPORT ESCALATION PROCEDURE
4.1           Technical Support.
4.1.1              All service calls from the Customer will be placed directly with Masstech Technical Support.
4.1.2              The Customer’s call will be logged into the support database which will allow someone unfamiliar with the Customer’s problem access to the most current information about the Customer’s account.
4.1.3              At the time of logging, a priority will be assigned to the problem to identify the level of severity.
4.1.4              Specific, written information including logs, playlists, and a copy of an air tape can be useful tools in helping to diagnose a problem.  The Customer shall provide such materials on request from the Supplier and shall not unreasonably withhold such materials.
3.1.5              If hardware crashes or locks up, the Customer will be asked for any error codes or address faults that may have been displayed in addition to a detailed accounting of what operator actions may have led up to the problem. Without this information, it may be difficult for the Supplier to address a specific situation.
3.1.6              In addition, the Customer will be asked for the versions of software applications that the Customer is currently running in order to verify such information against the Supplier’s database. If the Supplier’s technician in charge cannot solve the issue, it will be escalated to a Senior Technician and then it would be escalated to Masstech Engineering Support, if necessary.
4.2           Levels of Severity: Three levels of problem severity are defined: (i) Critical – an urgent problem having a direct and very significant immediate impact on the Customer’s operations, (ii) High – a problem that will have a non-immediate impact on the Customer’s operations, or (iii) a problem that will have no direct impact on the Customer’s operations.
4.3           Escalation Procedures: for Critical severity problems, the initial support technician will decide what resources to activate. At all times an escalation path is provided for the call center to contact Senior Support Engineers and involve them. For High severity problems, the initial support technician will decide what resources to activate. For Low severity problems, issues open longer than one month are reviewed by Support Management and Engineering Management on a weekly basis.
4.4           Customer Care. If after a reasonable attempt the Customer is unable to reach a satisfactory resolution with the Masstech Technical Support, Licensee may escalate its concerns to the Vice President of Engineering and Support.
4.5           Software Fixes: If a Software problem is identified, then a Software patch file may be required to resolve the problem. The Supplier will provide this on the understanding that the patch file code may have only undergone minimal testing and should therefore only be considered for emergency use only.
4.6           Customer Obligations: To enable the Supplier’s service personnel to diagnose and resolve problems remotely, an active broadband connection with appropriate access to the Customer’s systems must be readily available.
4.7           Remote Diagnostics: From time to time the Supplier’s service personnel may establish a remote connection to the Customer’s systems for the purposes of carrying out a system health check, retrieving a log file, diagnosing a problem or performing a system configuration verification audit. The Supplier’s service personnel will make no modification to the Customer’s system whatsoever without the express permission of a suitably authorized employee of the Customer.
5               LIMITATIONS OF SUPPORT SERVICES
5.1           The Support Services shall be subject to the following limitations:
5.1.1              the Supplier shall use reasonable endeavours to resolve Defects but makes no guarantee that any Defects will actually be resolved;
5.1.2              the Supplier makes no guarantee regarding any response and/or resolution times;
5.1.3              the Support Services do not include the provision of support that is required because of any Excluded Event, provided that the Supplier may use commercially reasonable efforts to provide support, required as a result of such Excluded Events, available to the Customer outside of the terms of the Support Services, and any such support will be invoiced separately and paid by the Customer at the Supplier’s then-current published time and materials rates for the country where such additional services are provided;
5.1.4              the Supplier bears no responsibility for the hardware that the  Software is hosted or run on;
5.1.5              the Supplier bears no responsibility for the third party software applications that are required by the Software. This includes but is not limited to Operating Systems (OS), Databases (DB), Codecs, Shared File Systems or other Third Party Materials;
5.1.6              unless otherwise expressly agreed, the Support Services do not cover any customised software application developed by the Supplier for the Customer and shall only cover the standard version of the Software; and
5.1.7              unless otherwise expressly agreed, the Support Services shall apply only to: (a) the most current and to one immediately preceding Upgrade of the Software; and (b) any Updates for such Upgrade.
6               CUSTOMER SPECIFIC SUPPORT SERVICES
6.1           The Supplier may provide additional support to the Customer in addition to the terms of the Support Services.
6.2           Any such additional support, and related Charges, shall be agreed by the Supplier and the Customer and documented in a Purchase Order.

SCHEDULE 2 – CHANGE ORDER
1          Either party may propose a Change in accordance with this change procedure.  Each party shall consider in good faith any proposal for Change from the other party.
2          If either party wishes to propose a Change (the “Change Proposer”), it shall submit to the other party (the “Change Recipient”) a written request detailing the proposed Change (“Change Request”) specifying, in as much detail as is reasonably practicable, the nature of the proposed Change.  Within ten (10) business days of receipt of a Change Request (or, where the Change Request is stated as being urgent, as soon as reasonably practicable) the party responsible for implementing the Change (the “Change Implementer”) shall submit to the other party a Change Proposal in accordance with paragraph 3 below.
3          If paragraph 2 of this schedule applies, the Change Implementer will provide the other party with a written proposal in relation to the relevant Change (a “Change Proposal”) which shall include the following information (except where such information is not relevant to the proposed Change):
3.1.1     details of the proposed Change and its impact on the Services or other variations to the Agreement;
3.1.2     an initial estimate of the cost of implementation and on-going operation of the relevant Change (including supporting evidence explaining the basis of calculation);
3.1.3     details, if relevant, of the proposed Change’s compliance with any applicable laws and regulations;
3.1.4     a high level implementation plan and timetable for the proposed Change, including (where appropriate) a high level specification of the technical aspects of the proposed Change;
3.1.5     an assessment of the possible risks of introducing the proposed Change;  and
3.1.6     a review of the resources required to implement the proposed Change.
4          Within ten (10) business days of receipt of the Change Proposal (or, where the Change Request is stated as being urgent, as soon as reasonably practicable), the Change Recipient shall notify the Change Proposer whether or not it agrees to the proposed Change.  If the Change Recipient notifies the Change Proposer that it does not wish the proposed Change to be implemented, then no further action shall be taken, save that neither party shall unreasonably withhold consent to any Change.  If the Change Recipient notifies the Change Proposer that it accepts the proposed Change, then the parties shall agree a Change Order (the form of which is set out in annex A to this schedule) as soon as reasonably practicable and the Change Implementer shall then implement the Change in accordance with the terms of the agreed Change Order.
5          Until such time as both parties have agreed a proposed Change in accordance with this change procedure, both parties shall, unless otherwise expressly agreed in writing, continue to perform their obligations under this Agreement in accordance with its terms and shall be under no obligation to perform any work in relation to a proposed Change except for complying with the obligations set out in this change procedure, including the production of a Change Proposal.
6          Any additional work undertaken by either party, its sub-contractors or agents which has not been authorised in advance by a Change shall be undertaken entirely at the expense and liability of that party and the other party shall have no obligation to make any payment in connection with such work.

ANNEX A

Change Order

Title of Change:

 

Originator:

 

Date:

 

Reason for the Change:

 

Description (giving full details, including any specifications):

 

Workflows affected by the change:

 

The cost of the Change:

 

Timetable:

 

Impact on the Agreement:

 

Agree to proceed (Yes/No):

 

 

DOCUMENT APPROVALS

Work may not proceed (onsite or remote) without the acceptance of this Change Order.  Please indicate acceptance by signing and returning this page of the document.

Project Name:  

MII Order Number:

Role

Sign and Print Name

Date

MII Sales:

 

 

MII Sales Engineering:

 

 

MII Project Manager:

 

 

For CUSTOMER NAME:

 

 

SCHEDULE 3 – BETA SOFTWARE LICENCE
1               LICENCE AND USE OF SOFTWARE
1.1           The terms of this Beta Software Licence govern the Customer’s use of Beta Software and all resulting data.
1.2           Subject always to the Customer’s compliance with this Beta Software Licence, the Supplier may make Beta Software available to the Customer, free of charge. The Supplier recommends that the Customer only use Beta Software in a test environment and any use of the Beta Software in a live production environment shall be at the Customer’s sole risk. 
1.3           Upon the Customer’s request for Beta Software and receipt of the Supplier’s confirmation, the Customer will be granted a non-exclusive, non-transferable, non-sub-licensable and non-assignable licence during the Trial Period to use the Beta Software for the sole purpose of the Customer’s confidential, internal evaluation and testing of the Beta Software and supply of feedback to the Supplier subject to this Beta Software Licence and the terms of the Agreement.
1.4           Nothing in this Beta Software Licence grants the Customer access to the Beta Software source code and except for those rights specifically granted in this Beta Software Licence, the Supplier reserves all right, title and interest in and to the Beta Software and any related documentation.
1.5           The Customer agrees that it will:
1.5.1              not copy or reproduce the whole or any part of the Beta Software (save to the extent permitted by applicable law);
1.5.2              except as required to be permitted by law, not (and will not attempt to or allow any third party to or attempt to) copy, adapt, alter, amend, modify, reverse engineer, decompile, disassemble or decode the whole or any part of the Beta Software or translate the whole or any part of the Beta Software into another digital language;
1.5.3              not, nor allow any third party to, copy, make error corrections or to otherwise modify and/or enhance the Beta Software nor create derivative works based upon the Beta Software;
1.5.4              notify the Supplier as soon as it becomes aware of any unauthorised use of the Beta Software by any person (including its personnel);
1.5.5              not change the location at which the Beta Software is installed without prior approval of the Supplier (such approval not to be unreasonably withheld); and
1.5.6              not resell or sub-licence the Beta Software.
2               DISCLAIMER OF WARRANTIES AND LIABILITY
2.1           The Beta Software is currently in development and is released solely for the purposes of trial and testing. The Customer hereby acknowledges that:
2.1.1              the Beta Software is not a commercialised product and as such may not work properly, may contain defects and may expose Customer to unusual risks of operational failures; and
2.1.2              use of the Beta Software may lead to data loss or other damage to the Customer’s computer(s) or other Software in use by the Customer or the data held on either and that the Customer’s use of the Beta Software is at the Customer’s own risk.
2.2           The Customer acknowledges that it is under no obligation to use Beta Software and if the Customer is not comfortable with the terms of this Beta Software Licence or the associated risks, it shall not use the Beta Software.
2.3           To the extent permitted under applicable law, the Beta Software is provided “as is” with no warranty and the Supplier disclaims any and all warranties with respect to the Beta Software. The Supplier makes no representation or warranty that the Beta Software will meet the Customer’s requirements, be of satisfactory quality, be fit for a particular purpose, be compatible with all computer systems, or will be secure. The entire risk as to the quality of the Beta Software, or arising out of the use or performance of the Beta Software, remains with the Customer.
2.4           Beta Software is not subject to any agreed service levels.  The Customer may submit general enquiries to the Supplier; however, the Supplier is under no obligation to answer them or to provide support for the Beta Software.
2.5           For the avoidance of doubt, the provisions of clause 16 (disclaimer and limitation of liability) of the Agreement shall apply in relation to the Beta Software, the Customer’s use of the same under this Beta Software Licence and any liabilities of the Supplier in respect thereof.
3               TRIAL PERIOD
3.1           The Trial Period may be extended, reduced or terminated immediately at the Supplier’s sole discretion.
3.2           The Supplier may change or discontinue the Beta Software at any time without notice and the Supplier may choose not to make any Beta Software or related services commercially available for general release.
3.3           Once the Beta Software is available as a paid-for or commercially available general release, it shall cease to be “Beta Software” and shall be considered “Software” as defined in the Agreement, at which time the terms of this Beta Software Licence shall no longer apply.  The Customer’s use of such Software may be subject to the Customer obtaining a licence by entering into a separate Purchase Order with the Supplier and payment of additional Charges.
3.4           Any Software or Services, which the Supplier may subsequently develop and offer based upon the Beta Software may change substantially from the Beta Software, and programs that use or run with the Beta Software may not work with the developed Software or Services.
4               SOFTWARE UPDATES
4.1           The Supplier may from time to time during the Trial Period release updates for the Beta Software.   It is recommended that the Customer facilitates the implementation of such updates to the Beta Software in accordance with the reasonable instructions of the Supplier.
4.2           All of the licensed rights and the provisions of this Beta Software Licence shall also apply to any updates to the Beta Software provided by the Supplier to the Customer during the term of the Agreement.
5               REPORTING AND FEEDBACK
5.1           The Beta Software may produce its own error reports and other diagnostic files.  The Customer should ensure that, where possible, the Customer’s computer is connected to the internet and any firewall or other internet security the Customer may have is configured to allow the Beta Software to send such reports and files to the Supplier.
5.2           The Customer may from time to time be requested to submit feedback to the Supplier. The Customer hereby acknowledges that upon submitting feedback to the Supplier, the Customer automatically grant to the Supplier a worldwide, perpetual, irrevocable, royalty free licence to use that feedback in any way the Supplier deems appropriate, including:
5.2.1              the use, publication, distribution, transmission, broadcasting, licensing, sub-licensing, leasing, lending and sale of the feedback; and
5.2.2              the creation, use, publication, distribution, transmission, broadcasting, licensing, sub-licensing, leasing, lending and sale of any derivative works based upon the feedback.
5.3           The Supplier’s use of any feedback shall not bestow any rights or interests upon the Customer or its personnel whatsoever.
6               TERMINATION OF BETA SOFTWARE LICENCE
6.1           The Customer’s licence to use the Beta Software shall terminate at the end of the Trial Period, unless terminated earlier in accordance with the terms of the Agreement.
6.2           Without prejudice to the Supplier’s termination rights in clause 17 of the Agreement, the Supplier may terminate the Beta Software Licence at any time, in the Supplier’s sole discretion.


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