Within this document, the terms “we”, “us”, “our” and “ourselves” refers to the Supplier defined in the Order Form and “you”, “your” and “yourselves” refers to the Customer defined in the Order Form. The term “they” refers to both Parties.

1. Fees and Payment

1.1 Failure to Pay Fees. Without prejudice to our other rights, we may suspend the license to or provision of Licensed Software and/or the Services if you become more than sixty (60) days delinquent on your Fee payment. If you become more than one hundred and twenty (120) days delinquent on your Fee payment, we may terminate the Agreement immediately on notice. Our failure to exercise our rights under this clause shall not prohibit or affect our right to subsequently exercise them.

1.2. Taxes. Fees and other charges imposed under the Agreement shall not include taxes, all of which will be your responsibility. You agree to pay or reimburse us for all federal, state, dominion, provincial, or local sales, use, personal property, excise, withholding or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes on our net income and on the payment of our employees’ salaries).

1.3. Overdue Amounts. If you fail to make any payment by the due date, you will pay interest in addition to the overdue amount at the rate of 4% per annum above Bank of America’s base rate from time to time. This interest accrues on a daily basis until actual payment of the overdue amount.

1.4. Set Off. You cannot withhold, reduce or set-off any Fees owed nor reduce Usage Metrics during the Subscription Term.

2. Warranties

2.1. Compliance with Laws. We warrant that we will provide the Licensed Software and Services to you in compliance with any laws applicable to us generally, without regard to your specific use of the Licensed Software and Services. You warrant that you will use the Licensed Software and Services in compliance with all applicable laws.

2.2. Recommendations. You accept responsibility for the selection of the Licensed Software and acknowledge that the Licensed Software has not been developed to meet your individual requirements. You will be solely responsible for any opinions, recommendations, forecasts or other conclusions made or actions taken based (wholly or in part) on the results obtained from the use or receipt of the Licensed Software or Services.

2.3. Limited Warranty. Other than the warranties expressly stated above or documented elsewhere in the Agreement, no express or implied warranties shall apply to any Licensed Software, Documentation or Services covered by the Agreement which shall be provided on an “as is” basis. We expressly disclaim any implied warranties that may apply, including (without limitation) in relation to merchantability, fitness for a particular purpose, satisfactory quality and non-infringement.

3. Confidential Information

3.1 Non-Disclosure. Each Party agrees that during the Subscription Term and for a period of five (5) years afterwards, it: (i) will treat as confidential all Confidential Information of the other Party; (ii) will not use such Confidential Information except as expressly set out herein or otherwise authorized in writing; (iii) will implement reasonable procedures (using at least the same degree of care as it uses to protect its own Confidential Information) to prevent the disclosure, duplication, misuse or removal of the other Party’s Confidential Information; and (iv) will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under the Agreement, and subject to confidentiality obligations at least as protective as those set out in the Agreement. The receiving Party of any Confidential Information will be responsible to the disclosing Party for any unauthorized disclosure of the disclosing Party’s Confidential Information by any third party to whom the receiving Party has directly or indirectly disclosed such Confidential Information.

3.2. Exceptions. The restrictions in clause 3.1 will not apply to information that: (i) the receiving Party can demonstrate was known to the receiving Party at the time of communication to it; (ii) has become publicly known through no wrongful act of the receiving Party; (iii) has been rightfully received from a third party authorized to make such communication without restriction of which the receiving Party was aware; (iv) has been independently developed by the receiving Party without access to or use of the Confidential Information; (v) has been approved for release by written authorization of the disclosing Party; or (vi) is required by law or regulation or the listing rules of a recognized stock exchange to which the receiving Party is subject to be disclosed, provided that if a Party is required to disclose the other Party’s Confidential Information pursuant to an order under law or regulation, that Party will, to the extent permitted by law, give the other Party sufficient notice of the disclosure to allow reasonable opportunity to object to and take necessary legal action to prevent the disclosure.

3.3. Disclosure of Agreement Terms. Each Party agrees not to publicize or disclose the Agreement terms to any third party without the prior written consent of the other Party, except under an appropriate non-disclosure agreement to a Party’s lawyers, investors, potential investors, investment bankers, lenders, accountants, employees and other representatives as is reasonably necessary.

3.4. Publicity. Neither Party will use the name, logo or trademarks of the other Party in any publicity without the prior written consent of the other, provided that we may: (i) disclose that you are a customer; (ii) use your name in customer listings or calls with investors; (iii) display your logo as part of our marketing materials (including reference calls and stories, press testimonials, site visits) and on our website; and (iv) issue a mutually agreeable joint press release and/ or case study.

3.5. Benchmark Test Results. You agree not to disclose benchmark, test or performance information or any report which contains a competitive analysis regarding the Licensed Software or Services to any third party except as explicitly authorized by us in writing.

3.6. Proprietary Information. The Licensed Software is proprietary to us and contains confidential and valuable Intellectual Property Rights and trade secrets, is protected by copyright and other Intellectual Property Rights and laws which you agree to comply with pursuant to the terms of the Agreement.

4. Limitation of Liability

4.1. Unlimited Liability. Neither Party will exclude or limit its liability resulting from: (a) that Party’s indemnification obligations set out in the Agreement; (b) fraud or fraudulent misrepresentation by that Party; (c) death or personal injury arising from that Party’s negligence or wilful misconduct; (d) any failure by you to pay any fees due under the Agreement (or as would have become due, but for its earlier termination); (e) your reproduction, use or distribution of the Licensed Software or Services outside the scope of the licenses granted in the Agreement; or (f) any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.

4.2. Exclusion of Damages. Subject to clause 4.1, in no event will either Party be liable for loss of use, corruption of software, loss or damage to or corruption of data or failure to store any data, system incompatibility, failure to accurately transfer, read, or transmit information, loss of or damage to goodwill, interruption of business, loss of profits, loss of sales or revenue, loss of anticipated savings, loss associated with any transaction using the Licensed Software, wasted expenditure (including procurement costs and management time) or any consequential, special, exemplary, punitive, incidental, or indirect damages of any kind under any cause or action whether in contract or tort (including negligence), whether or not the Party has been advised of the possibility of such damages. These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.

4.3. Liability Cap. Subject to clauses 4.1 and 4.2, the aggregate liability of a Party, its Affiliates, and their respective officers, directors, employees, agents and representatives, for claims arising under or in connection with the Agreement, whether in an action in contract or tort (including negligence) for breach of statutory duty, warranty, strict liability, product liability, or any other form of action, shall be limited in each Contract Year to: (i) in the case of liability arising from Professional Services, direct damages not exceeding two times the total Fees paid or payable in the relevant Contract Year; and/or (ii) in the case of liability arising from the Licensed Software (and Software Support Services), direct damages not exceeding two times the total Fees paid in the relevant Contract Year.

4.4. The Fees reflect the allocation of risk and limitation of liability agreed herein and the Parties have relied on the exclusions and limitations in determining to enter into the Agreement.

5. Indemnification

5.1. Indemnification by us. Subject to the remainder of this clause 5, we will defend you against, or at our option, settle any Infringement Claim. We will indemnify you from any damages finally awarded against you (including your reasonable attorney’s fees) in respect of the Infringement Claim. Our liability and obligation under this indemnity is conditional on the following: if any third party makes a claim, or notifies an intention to make a claim, against you which may reasonably be considered likely to give rise to an Infringement Claim, you will: (a) as soon as reasonably practicable, give us written notice of the Infringement Claim, specifying the nature of the Infringement Claim in reasonable detail; (b) not make any admission of liability, agreement, settlement or compromise in relation to the Infringement Claim without our prior written consent or otherwise prejudice our defence of such Infringement Claim; (c) give us and our professional advisers reasonable access (on reasonable prior notice) to your premises, personnel and records as required for us to assess and defend the Infringement Claim; and (d) give us sole control over and authority to avoid, dispute, settle or defend such Infringement Claim; provided that we will not settle any such Infringement Claim without your prior written consent (not to be unreasonably withheld or delayed) unless the settlement unconditionally releases you from further liability, and does not place undue restrictions on your business, products or services.

5.2. Our Options. If any third party makes, or notifies an intention to make, a claim against you which may reasonably be considered likely to give rise to an Infringement Claim, or we reasonably conclude that the Licensed Software may be liable to an Infringement Claim, we will, at our own expense and option: (i) procure for you the right to continue to use the Licensed Software; or (ii) replace (within a reasonable period of time) the infringing components of the Licensed Software with other components with the same or similar functionality that are, in all material respects, acceptable to you (acting reasonably); or (iii) suitably modify the Licensed Software (within a reasonable period of time) so that it is non-infringing without material loss in functionality. If none of the foregoing options are available to us on commercially reasonable terms, we will have the right to terminate the Agreement without having any further liability to you except: (i) as provided in clause 5.1 above; and (ii) we shall refund you a pro-rata amount of any pre-paid Fees in respect of the infringing Licensed Software for the duration of any pre-paid subscription period for which you are unable to use that Licensed Software. This clause 5 states our entire liability to you in respect of the Infringement Claim.

5.3. Limitation on our indemnity. Notwithstanding the provisions of clause 5.1, we assume no liability for, and do not indemnify you against: (a) infringements which would not have arisen without the combination by you of the Licensed Software with any third party software or hardware products; (b) connections or integrations of the Licensed Software with any of your products or any of your components, whether enabled through APIs, third party software or Dependencies or otherwise; (c) modifications to the Licensed Software made by any party other than us or which are not made under our direction; (d) use of an unsupported Version of the Licensed Software pursuant to the Software Support Terms or the failure to install any Error Correction or Release to the extent such infringement would have been avoided by the use of the current Version or installation of the Error Correction or Release (as applicable); (e) trade mark infringements involving any marking or branding not applied by us or involving any marking or branding applied at your request and not approved by us; or (f) infringements arising from your negligence or wilful infringement.

5.4. Indemnification by you. You agree to indemnify and hold us harmless against any loss, liability, claim, damage, fine, cost or expense (including reasonable attorneys’ fees) arising out of: (i) use of the Licensed Software or Services in violation of the Agreement; (ii) any decision made or action taken by you or any other Person on the basis of the Licensed Software or product or works produced using the Licensed Software and not caused by any fault or error with the Licensed Software; and (iii) the combination of the Licensed Software with other software, systems, applications or hardware which infringes or misappropriates any third party’s Intellectual Property Rights.

5.5. Reduction in Indemnification. The indemnifying Party’s liability to indemnify shall be reduced to the extent that such claims, suits or actions are subject to the indemnitee’s obligations to indemnify in the Agreement.

5.6. Mitigation. Each Party will use reasonable endeavours to avoid or mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 5.

6. Termination

6.1. Termination for Cause. Either Party may terminate the Agreement at any time upon written notice to the other Party if: (i) the other Party materially breaches any provision hereof and fails to cure such breach (where curable) within thirty (30) days after receiving written notice of such breach (except non-payment of Fees, which shall be handled in accordance with clause 1.1); (ii) the other Party becomes insolvent, is unable to pay its debts as they fall due or ceases to operate as a going concern; (iii) the other Party makes an assignment for the benefit of creditors; or (iv) if there are instituted by or against the other Party proceedings in bankruptcy, reorganization, receivership or dissolution and such proceeding is not stayed or dismissed within sixty (60) days. We will be permitted to immediately terminate any Subscription Term, the Dev and Test License and/or the Agreement at any time if the power to conduct your affairs (whether by means of holding of shares, possession of voting rights, conferment of powers by articles of association or by any other means) is or becomes held by a Person or group of Persons whom we reasonably consider to be a direct competitor of ourselves without us having given consent to such change of control.

6.2. Surviving Provisions of Agreement. Termination of the Agreement by either Party shall in no way prejudice any existing right or claim or relieve you from its obligation to pay us any sums accrued or due prior to the date of such termination. Together with any other provision which is either expressed to or by implication is intended to survive termination, the provisions of clauses 1, 2, 3, 4, 5, and 7 (inclusive) shall survive the termination of the Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of the Agreement.

7. Additional Provisions

7.1. Independent Contractors. The Parties are independent contractors. Nothing contained herein or done pursuant to the Agreement shall constitute either Party being the agent or employee of the other Party for any purpose or constitute the parties as partners or joint venturers. Neither Party will create or assume any obligation on behalf of the other Party for any purpose whatsoever unless such other Party expressly agrees to such an obligation in writing. Notwithstanding the above, you agree to act reasonably and in good faith in relation to your dealings with us including in relation to the requirements regarding usage, audits and reporting.

7.2. Governing Law and Jurisdiction. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales. Without prejudice to our right to seek injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as we consider necessary to protect our name, proprietary information, trade secrets, know-how, or any other Intellectual Property Rights, and without regard to the United Nations Convention on Contracts for the International Sale of Goods, all disputes arising out of or in relation to the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England and Wales. Each Party hereby waives any disputes it may have with respect to proper venue.

7.3. Dispute. Except in the case of a Party seeking to exercise its right to injunctive relief or any other provisional remedy, or in the case of infringement or misappropriation of our Intellectual Property Rights or violation or disclosure of Confidential Information, in the event of a dispute between the Parties relating to the Agreement, the Party raising the matter in dispute will notify the other in writing describing in sufficient detail the nature of the dispute. Each Party will then appoint or nominate one or more senior representatives to resolve the dispute. At the end of 30 days, if no agreement has been reached between the Parties to resolve the dispute, either Party is free to initiate proceedings.

7.4. U.S. Government Use of Software. You agree that the Licensed Software is “commercial computer software” and/or “commercial computer software documentation” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable, and any use, modification, reproduction, release, performance, display, or disclosure of the Licensed Software by a U.S. government agency shall be prohibited except as expressly permitted by the Agreement, which terms shall govern.

7.5. Notices. All notices made pursuant to the Agreement must be made in writing. Any written notice to be given or made pursuant to the provisions of the Agreement shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other Party’s address stated in the Order Form and shall be marked for the attention of “The Company Secretary”. Unless otherwise provided in the Agreement, all notices shall be deemed as given on the day of their receipt by the receiving Party.

7.6. Assignment, Successors and Subcontractors. The Agreement shall be binding and inure to the benefit of the Parties and their respective permitted successors (as notified to us) and assignees. You will not assign, transfer or novate any of your rights nor delegate any of your obligations under the Agreement to any third party without our express written consent. For the purpose of the Agreement, “assign” or “transfer” shall be deemed to include the reorganization or merger of a Party or the sale of such Party’s business or all or substantially all of its assets to a third party. We may assign, transfer or novate all or any our rights and obligations under the Agreement to any other company within our Group for the purposes of internal reorganization or to any company to which we transfer all or a substantial part of our assets or business provided that the assignee, transferee or novatee undertakes to you to be bound by and perform our obligations under the Agreement. We may subcontract all or part of the Services to third parties or Affiliates (subcontractors) and/ or use Affiliates to perform the Services provided that we remain responsible for breaches of the Agreement caused by our subcontractors and Affiliates.

7.7. Force Majeure. Neither Party will be liable for any failure or delay in performing their obligations (other than obligations to pay) where such failure or delay results from any cause which is beyond that Party’s reasonable control including failure of utilities or the internet, fire, flood, earthquakes, collapse of buildings, explosion, acts of terrorism, acts of war, pandemics, epidemics, public health emergencies, governmental action, any law or any action taken by a government or public authority including imposing an export or import restriction, quota or prohibition that prevents or delays the provision of the Licensed Software or any of the Services. Dates or times by which each Party is required to render performance under the Agreement shall be postponed automatically to the extent and for so long that the Party is delayed or prevented from meeting them by such causes.

7.8. Waiver. The failure or delay of either Party to insist upon strict performance of any provision of the Agreement, or to exercise any right or remedy to which it is entitled under or in connection with the Agreement shall not constitute a waiver thereof and no waiver of any breach of the Agreement shall operate as a waiver of any subsequent or continuing breach.

7.9. Amendment. The Agreement may be amended or modified only in a written document (which may include the Order Form) and signed by authorized representatives of each Party.

7.10. Severability. If any provision or part-provision of the Agreement is found to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision or part-provision shall be severed from the remainder of the Agreement, which will remain in full force and effect to the maximum extent permitted by law, given the fundamental intentions of the Parties. If any provision or part-provision of the Agreement is deemed deleted under the foregoing sentence, the Parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

7.11. Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under clause 3 or, in the case of you only, any unauthorized use by you of the Licensed Software or any Supplier Intellectual Property Rights, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

7.12. Third Party Rights. No person other than the Parties to the Agreement will have the right to enforce any term of the Agreement. In particular, a person who is not a Party to the Agreement will not derive the right to enforce any of the terms of the Agreement including by virtue of the Contracts (Rights of Third Parties) Act 1999 and the rights of any third party under that act are hereby expressly excluded.

7.13. Usage by Affiliates. Where the Order Form provides for usage of the Licensed Software by Authorised Affiliates, such usage shall be restricted to the Authorised Affiliates listed on the Order Form. Usage by any future or additional Affiliates shall be subject to separate agreement with us. You will be liable to and will indemnify us against any losses, costs, expenses or damages incurred by, or claims received by, us as the result of the acts and/or omissions of your Authorised Affiliates. You agree that any act or omission by any such Authorised Affiliate that would be a breach of the Agreement if the Authorised Affiliate were a Party to the Agreement will be considered a breach by you. The rights of your Authorised Affiliates with respect to the Licensed Software will be no greater than your rights, and the obligations of your Authorised Affiliates with respect to the Licensed Software will be no less than your obligations. You will take all such steps as are necessary to ensure that your Authorised Affiliates comply with the terms and conditions of the Agreement to the same extent as you are obligated to comply with its terms and conditions.

7.14. Trade Control. You acknowledge that any Licensed Software is subject to US export control and economic sanctions laws and regulations and to import laws, regulations and requirements of certain foreign governments (“Trade Control Laws”) (as referenced in this clause 7.14, Licensed Software includes its related technical data and services). You agree to fully comply with those Trade Control Laws in connection with the Licensed Software including where applicable assisting in obtaining any necessary governmental approvals, licenses and undertakings. Without prejudice to the generality of this clause, you will not, and will not allow any third party, to use, export, re-export or transfer, directly or indirectly, of any part of the Licensed Software in violation of any Trade Control Laws. A listing of U.S. Export Control Classification Numbers and U.S. license exceptions, to the extent applicable to the Licensed Software, is available at the following website: Export Statement – KX. You represent and warrant that you will ensure: (i) the Licensed Software will not be used for any purposes associated with chemical, biological or nuclear weapons or missiles or unmanned aerial vehicles capable of delivering such weapons, nuclear explosive activity or unsafeguarded nuclear fuel cycle, or any military-intelligence activity, nor will it be resold (if reselling or sublicensing is permitted under the Agreement) if you know or suspect that it is intended or likely to be used for such a purpose; and (ii) the Licensed Software will not be used, exported, re-exported or otherwise re-sold or transferred to a destination subject to US, UN, EU, UK or OSCE embargo where that act would be in breach of the terms of that embargo (including but not limited to the Crimea region of Ukraine, Cuba, Iran, North Korea and Syria) (“Embargoed Countries”); and (iii) the Licensed Software will not be used, exported, re-exported or otherwise re-sold or transferred to any party (a) listed on any U.S. or applicable non-U.S. sanctions- or export-related restricted or prohibited party list, including but not limited to the Specially Designated Nationals and Blocked Persons List maintained by the U.S. Department of the Treasury, the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce, the UN Security Council Consolidated List, and the EU Consolidated List, and the UK Office of Financial Sanctions Implementation’s Consolidated Financial Sanctions List; (b) any party that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by parties described in (a); or (c) any party that is legally organized in, having a principal place of business in, or ordinarily resident in an Embargoed Country. Any dispute in relation to this clause 7.14 shall be governed in accordance with clause 7.2 unless Trade Control Laws determine otherwise. You acknowledge that we may not be permitted (and, in such an event, shall be excused from any requirement) to deliver or grant access to the Licensed Software, or perform support or services, due to an embargo, trade sanction or other comparable restrictive measure.

7.15. Anti-Bribery. Each Party will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.

7.16. Order of Precedence. The order of precedence shall be as detailed in the Order Form. Notwithstanding, if there are any third party pass-through terms and conditions applicable to Third Party Software stated, those terms and conditions prevail over any conflicting or inconsistent terms of any component of the Agreement. The terms and conditions of the Agreement shall prevail notwithstanding any other terms and conditions of any order or purchase order submitted or purported to be relied upon by you.

7.17. Data Protection: Each Party agrees to comply with its obligations under applicable Data Protection Laws. Each Party acknowledges that for the purposes of Data Protection Laws, it is a separate controller in respect of any personal data which it processes in connection with the provision and/or receipt of the Licensed Software and the Software Support Services and that each independently of (and not jointly with) the other Party determines the purposes for which and the manner in which any such personal data is, or is to be, processed.

7.18. Counterparts and Signature. The Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of the Agreement, but all the counterparts shall together constitute the same. Delivery of an executed counterpart of a signature page to an Order Form by fax or by email of a scanned copy, or execution and delivery through an electronic signature service (such as DocuSign), shall be effective as delivery of an original.

8. Definitions

8.1. “Affiliate(s)” means with respect to any given Person, a Person that directly or indirectly Controls, is Controlled by, or is under common Control with the given Person. “Control” means, when used with respect to any Person, the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” have meanings correlative to this.

8.2. “Agreement” means the definition provided on the Order Form.

8.3. “API” means an application programming interface and accompanying or related Documentation, code, tools, executable applications, libraries, subroutines and other materials (and all derivative works or modifications thereof) that allows other software to communicate with or call on Licensed Software, including any access code, authentication keys or similar mechanisms to enable access of the APIs.

8.4. “Authorised Affiliate” means those Affiliates listed in the Order Form or subsequently agreed to in writing by us who are permitted to access and use the Licensed Software in accordance with the Agreement.

8.5. “Builder User” means a user that has access via the Licensed Software and has the ability to: (i) design, edit and build software visualization tools and dashboards; (ii) create and modify pre-set input parameters of dashboards and create new input parameters for dashboards; (iii) change the data sources for the dashboards.

8.6. “Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.

8.7. “Business Days” means Monday to Friday excluding public holidays in the jurisdiction from where Professional Services are performed.

8.8. “Cloud Provider” means a third party that: (a) sells or leases use or partial use of computers that are under its control; and (b) meets the Cloud Provider Requirements.

8.9. “Cloud Provider Requirements” means the: (1) the Licensed Software being installed on the Cloud Provider’s computers, and access controlled, in such a manner as to ensure that only Employees and Contractors are able to access and use the Licensed Software; and (2) the Cloud Provider being a publicly held company incorporated in (and using data centres to host the Licensed Software in) the United States, United Kingdom or a European Union country member; and (3) you have entered into a written contract with the Cloud Provider in their own name in respect of the cloud services provided.

8.10. “Confidential Information” means (a) information, in any form, disclosed by a Party or its Affiliates (the disclosing Party) to the other Party or its Affiliates (the receiving Party) and which is marked or identified as confidential at the time of disclosure or otherwise that would be regarded as confidential by a reasonable business person under the circumstances of disclosure; and (b) the Supplier Confidential Information.

8.11. “Contract Year” means each consecutive 12 month period commencing from the Effective Date of the Agreement.

8.12. “Customer Computer” means the: (i) designated non-mobile standalone or shared file servers at the Location; and (ii) any mobile laptop computers, that are either under your (or, where permitted in the Order Form, your Authorised Affiliates’) exclusive operational control or under the control of a Cloud Provider with access controlled to ensure that only your (and, where applicable, your Authorised Affiliates’) employees or authorised representatives are able to access and use the Licensed Software. A Customer Computer, if not under the control of a Cloud Provider, must be located on your (or, where permitted in the Order Form, your Authorised Affiliates’) premises or on the premises of a Hardware Hosting Services provider or, in the case of mobile laptop computers, in the Location country or such other location as may be notified to us in writing (subject always to the provisions of, and your compliance with, clause 7.14).

8.13. “Consulting Services” certain implementation, training, consulting, design and development services as further detailed in the Consulting Services Statement of Work.

8.14. “Contractor” means an independent contractor to you that has entered into a written agreement with you that obligates the Contractor to terms substantially equivalent to those set forth in the Agreement.

8.15. “Copyleft Materials” means materials subject to any license that requires as a condition of use, modification, or distribution thereof, that such materials, or materials combined or distributed with such materials, be (1) disclosed or distributed in source code or similar form, (2) licensed for the purpose of making derivative works, or (3) redistributable at no charge.

8.16. “Core” means core instruction processing circuit integrated onto a processor. In the event you elect to run the Licensed Software on a virtualized platform, each virtual core will count for purposes of calculating the Fees due to us.

8.17. “Data Protection Laws” means any applicable data protection laws including, without limitation, the General Data Protection Regulation (EU) 2016/679 as it applies in the European Union (GDPR), the UK Data Protection Act 2018 and any other applicable legislation in respect of privacy and/or Processing Personal Data. The terms “personal data”, “processing”, “data subject”, “controller”, “processor” and “personal data breach” shall have the meaning given under the applicable Data Protection Laws.

8.18. “Dependencies” means the dependencies that we, when providing services, have upon you or those acting on your behalf and those Dependencies identified in clause 2.2(f) in the License Terms.

8.19. “Dev and Test License” has the meaning given to it in the Order Form.

8.20 “Dev and Test Licensed Software” has the meaning given to it in the Order Form.

8.21 “Dev and Test License Period” has the meaning given to it in the Order Form.

8.22 “Documentation” means our then-current technical and/or functional documentation which is delivered or made available to you in eye-readable form with the Licensed Software under the Agreement to assist in the use of the Licensed Software and as may be updated from time to time, as available.

8.23. “Employee” means any of your regular employees or workers who has entered into a written employment or other agreement with you that obligates them to terms substantially equivalent to those set forth in the Agreement.

8.24. “Error” means the definition provided in the Software Support Terms.

8.25. “Error Correction” means the definition provided in the Software Support Terms.

8.26. “Fees” means the fees for provision of the Licensed Software and/or Services as detailed in the Order Form (or otherwise chargeable in accordance with the Agreement).

8.27. “Feedback” means bug reports, input, comments or suggestions from you, regarding our business and technology and/or the possible creation, modification, correction, improvement or enhancement of our software, products and/or services, exclusive of your Confidential Information.

8.28. “Group” means any subsidiary, holding company or wholly owned subsidiary of a Party to the Agreement as defined in the Companies Act 2006.

8.29. “Hardware Hosting Services” means operation of the Customer Computers on which the Licensed Software is installed by a third party, which third party operates and maintains the computers on your behalf but does not control the operation of, and cannot access the functionality of, the Licensed Software.

8.30. “Initial Subscription Term” means the term detailed in the Order Form in relation to the initial duration the license of any Licensed Software.

8.31. “Infringement Claim” third party claims, suits and/or proceedings brought against you alleging that your use of the Licensed Software as permitted under the Agreement infringes any Intellectual Property Rights of a third party.

8.32. “Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, whether registerable or not, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

8.33. “Licensed Software” means the software listed on the Order Form, in its compiled code form or if we provide any elements in source, in source code form, and all Updates, enhancements and fixes provided by us to you pursuant to the Agreement (including as part of the Software Support Services). The Licensed Software does not include New Products.

8.34. “License Fee” has the meaning ascribed to it in clause 3(a) of the License Terms.

8.35. “License Key” means a confidential security code or electronic file provided by us that enables the Licensed Software to be used by you on the Customer Computer.

8.36. “Location” means the location of the Customer Computers as specified in the Order Form.

8.37. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

8.38. “New Product” means our or any of our Affiliates’ software product that either: (a) provides significantly different or added functionality from the Licensed Software; or (b) is of significantly different design than the Licensed Software even if the new software product includes some of the functionality of the Licensed Software (in whole or in part).

8.39. “Operating Platform” means the third party operating system software which must be notified to, and approved by, us in the Order Form.

8.40. “Order Form” means the document agreed between the Parties, which sets out the Licensed Software and/or any Services to be provided by us to you and confirms the applicable terms and documents which will then form part of the Agreement in relation thereto.

8.41. “Permitted Use” means, in respect of any Licensed Software, the definition provided in the Order Form.

8.42. “Person” means a natural person, partnership (whether general or limited), limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity or any governmental authority.

8.43. “Pre-Existing Materials” shall have the meaning ascribed to it in clause 5(a) of the Professional Services Terms.

8.44. “Professional Services” means the Consulting Services and/or Managed Services to be provided by us as set out in the Order Form, and subject to the provisions of the Professional Services Terms.

8.45. “Release” means the definition provided in the Software Support Terms.

8.46. “Renewal Subscription Term” means, in respect of any Licensed Software the renewal term(s) detailed in the Order Form.

8.47. “Services” means as applicable and detailed in an Order Form, the Software Support Services and/or Professional Services.

8.48. “Software Support Services” means the software related support services to be provided by us as set out in the Order Form, and subject to the provisions of the Software Support Terms.

8.49. “Subscription Licensed Software” has the meaning given to it in the Order Form.

8.50. “Subscription Term” means the term of a Licensed Software subscription identified in the applicable Order Form, including all Renewal Subscription Terms.

8.51. “Supplier Confidential Information” means the Licensed Software and Documentation and other Supplier Materials and any Intellectual Property Rights related thereto.

8.52. “Supplier Intellectual Property Rights” means the: (i) the Licensed Software and Documentation; (ii) Supplier Materials which were developed or obtained by us or our Affiliates prior to or independently of the Agreement; and (iii) Supplier Materials developed or obtained by us or our Affiliates in the performance of the Software Support Services.

8.53. “Supplier Materials” means all software (in object and source code form), programs, tools, materials, information, concepts, designs, utilities, Ancillary Tools, processes, methodologies, database schema, APIs, dashboards, user interfaces, or any work product in generic format, or methodologies, that are our or our Affiliates’ property.

8.54. “Third Party Software” means third party software or open source software or components which are included with the Licensed Software and identified in the Documentation or provided during the performance of the Services, as applicable.

8.55. “Trade Control Laws” means all applicable import, export control and sanctions laws, regulations and requirements, including but not limited to the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, the sanctions programs administered by the U.S. Office of Foreign Assets Control, and the export control, economic sanctions, and import laws, regulations and requirements of foreign governments.

8.56. “Update” means the definition provided in the Software Support Terms.

8.57. “Usage Report” means the definition provided in the KX Insights Usage Terms.

8.58. “Usage Metric” means the standard of measurement for calculating the fees due for the applicable Licensed Software as set forth in the Order Form.

8.59. “Usage Metric Limitations” means the limitations specified in the Order Form.

8.60. “Version” means the definition provided in the Software Support Terms.

8.61. “Viewer User” means a user that has access via the Licensed Software and can: (i) read and view reports that they are permissioned for; (ii) update values for existing input parameters within the dashboards; and (iii) select pre-set queries from the existing options in the dashboards.

 

9. Rules of Interpretation.

9.1. In the Agreement, unless otherwise stated:

a) the clause, section, paragraph, schedule and other headings in the Agreement are included for convenience only and shall have no effect on interpretation;

b) a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction;

c) words in the singular include the plural and vice versa;

d) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;

e) a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email); and

f) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation.