Master Software License Agreement

1.1.

1.2.

Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3.

The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”.

1.4.

A reference to “writing” or “written” includes email.

2.1.

This Agreement commences on the date the Order Form is signed by both parties (with the Services to be provided from the Commencement Date) and continues for the initial term set out in the Order Form (the “Initial Term”), unless terminated earlier in accordance with this Agreement. After the Initial Term, this Agreement will renew automatically for successive periods equal in length to the Initial Term (or such other renewal period as set out in the Order Form) (each a “Renewal Period”), unless either party gives written notice of non-renewal at least 30 days before the end of the then-current Term.

3.1.

In consideration of the Fees, and subject to the terms of this Agreement, the Supplier grants the Customer a non-exclusive, non-transferable right to access and use the Services during the Term for its internal business purposes, up to the number of User Subscriptions purchased.

3.2.

The Customer may request to purchase additional User Subscriptions at any time by notifying the Supplier in writing. Where the Supplier confirms the additional User Subscriptions in writing, the Customer will pay for them in accordance with the Order Form and clause 6.

3.3.

Except for the rights expressly granted in this Agreement, this Agreement does not grant the Customer any Intellectual Property Rights in the Services, and all Intellectual Property Rights in the Services (excluding Customer Data) vest in and remain with the Supplier (or its licensors).

3.4.

The Supplier confirms that it has all rights in relation to the Services that are necessary to grant the rights and provide the Services in accordance with this Agreement.

3.5.

As between the parties, the Customer owns all right, title and interest (including all Intellectual Property Rights) in the Customer Data. The Customer grants the Supplier a non-exclusive licence to host, copy, process, transmit and display the Customer Data solely to the extent necessary to provide the Services in accordance with this Agreement.

4.1.

From the Commencement Date, the Supplier will provide the Services and make the Documents available to the Customer.

4.2.

The Supplier will provide the Services with reasonable skill and care, and warrants that the Services will, during the Term, materially conform to the description set out in the Documents.

4.3.

If the Services do not materially conform to the Documents, the Supplier will, at its own expense, use reasonable efforts to correct the non-conformity, or provide the Customer with an alternative means of accomplishing the desired performance. This clause 4.3 sets out the Customer’s sole and exclusive remedy for a breach of the warranty in clause 4.2.

4.4.

The warranty in clause 4.2 does not apply to non-conformity caused by use of the Services contrary to the Supplier’s instructions, or by modification or alteration of the Services by any party other than the Supplier or its authorised contractors.

4.5.

Other than as expressly set out in this Agreement, the Supplier does not warrant that: (a) the Customer’s use of the Services will be uninterrupted or error-free; (b) the Services will meet the Customer’s requirements other than as set out in the Documents; or (c) the Services will be entirely free from Vulnerabilities or Viruses.

4.6.

The Supplier will provide customer support during Business Hours, in accordance with the Service Level Agreement and Support Policy referred to in clause 9.

4.7.

The Supplier will maintain appropriate technical and organisational measures designed to protect the security, confidentiality and integrity of the Customer Data, as further described in the Master Data Processing Agreement between the parties.

5.1.

The Customer will:

5.2.

The Customer will not:

5.3.

The Customer will use reasonable efforts to prevent any unauthorised access to the Services and will notify the Supplier promptly on becoming aware of any unauthorised access or any Incident.

5.4.

The Customer will permit the Supplier to verify the Customer’s use of the Services against the number of User Subscriptions purchased, on reasonable prior written notice and no more than once in any 12-month period (except where the Supplier reasonably suspects a breach). Any such audit will be conducted during Business Hours and so as to cause minimal disruption.

6.1.

The Customer will pay the Fees for the Services in accordance with this clause 6 and the Order Form.

6.2.

Where the Supplier issues an invoice, the Customer will pay it within 30 days of the invoice date, to the bank account nominated by the Supplier.

6.3.

All Fees are exclusive of VAT or other applicable sales tax, which will be added at the appropriate rate.

6.4.

If the Supplier has not received payment of an undisputed invoice by the due date, then, without limiting its other rights:

6.5.

The Customer must notify the Supplier of any good-faith dispute over an invoice within 20 days of the invoice date. The parties will work together in good faith to resolve the disputed amount, and clause 6.4 will not apply to any amount genuinely in dispute.

6.6.

The Supplier may increase the Fees for each Renewal Period by giving the Customer at least 45 days’ written notice before the end of the then-current Term. If the increase exceeds [X]% (or, if left blank, the greater of 5% and the percentage increase in the UK Consumer Prices Index over the preceding 12 months), the Customer may decline to renew by giving notice of non-renewal under clause 2.1.

7.1.

Each party will comply with its obligations under the Data Protection Laws in connection with this Agreement.

7.2.

Where the Supplier processes Personal Data on behalf of the Customer in connection with the Services, the parties will comply with the Master Data Processing Agreement between them, which is incorporated into this Agreement by reference.

8.1.

Each party (as “Receiving Party”) will keep confidential the Confidential Information of the other party (as “Disclosing Party”) and will not, without the Disclosing Party’s prior written consent, use or disclose it other than as necessary to exercise its rights or perform its obligations under this Agreement. The Receiving Party may disclose Confidential Information to its Affiliates, and to its and their employees, officers, professional advisers and contractors who need to know it for those purposes, provided they are bound by obligations of confidentiality no less protective than those in this clause 8.

8.2.

The Receiving Party is responsible for any breach of this clause 8 by any person to whom it discloses Confidential Information under clause 8.1.

8.3.

This clause 8 does not apply to information which:

8.4.

The obligations in this clause 8 survive termination or expiry of this Agreement and continue for 3 years, except that Confidential Information that is a trade secret remains protected for as long as it retains that status.

9.1.

The Supplier will use commercially reasonable efforts to make the Software available to the Customer at least 99.9% of the time in each calendar month, measured 24 hours a day, seven days a week, excluding:

9.2.

The Supplier will provide customer support in accordance with the Service Level Agreement and Support Policy.

9.3.

The Service Level Agreement and Support Policy (available at setyl.com/legal) sets out the availability commitment, service credits, support hours and response targets in full, and is incorporated into this Agreement. In the event of any conflict between that document and this clause 9, that document prevails.

10.1.

The Supplier will indemnify the Customer against any losses, damages, liabilities, costs and reasonable expenses (including reasonable legal fees) finally awarded against the Customer, or agreed in settlement by the Supplier, arising from any third-party claim that the Customer’s use of the Services in accordance with this Agreement infringes that third party’s Intellectual Property Rights.

10.2.

The indemnity in clause 10.1 does not apply to the extent a claim arises from: (a) the Customer Data; (b) use of the Services in breach of this Agreement; (c) use of the Services in combination with any item not supplied or approved by the Supplier, where the claim would have been avoided without that combination; or (d) any modification of the Services not made by or on behalf of the Supplier.

10.3.

If the Services become, or in the Supplier’s reasonable opinion are likely to become, the subject of an infringement claim, the Supplier may at its option and expense: (a) procure the right for the Customer to continue using the Services; (b) modify or replace the Services so they no longer infringe; or (c) if neither is reasonably achievable, terminate the affected Services on written notice and refund any pre-paid Fees for the terminated period.

10.4.

The Customer will indemnify the Supplier against any losses, damages, liabilities, costs and reasonable expenses (including reasonable legal fees) finally awarded against the Supplier, or agreed in settlement by the Customer, arising from any third-party claim that the Customer Data, or the Supplier’s processing of the Customer Data in accordance with this Agreement, infringes that third party’s rights (including Intellectual Property Rights) or breaches applicable law.

10.5.

The indemnities in this clause 10 are conditional on the indemnified party: (a) promptly notifying the other of the claim; (b) not making any admission or settlement without the other’s prior written consent (not to be unreasonably withheld); and (c) giving the indemnifying party reasonable assistance and control of the defence and settlement of the claim.

10.6.

These indemnities are subject to clause 11 (Limitation of liability).

11.1.

Nothing in this Agreement limits or excludes either party’s liability for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; (c) any liability that cannot be limited or excluded by law; or (d) the Customer’s obligation to pay the Fees.

11.2.

Subject to clause 11.1, neither party is liable to the other, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any: (a) loss of profit; (b) loss of business, revenue or anticipated savings; (c) loss of goodwill; or (d) indirect or consequential loss, in each case arising under or in connection with this Agreement.

11.3.

Subject to clauses 11.1 and 11.2, each party’s total aggregate liability arising under or in connection with this Agreement in any 12-month period is limited to 100% of the total Fees paid or payable by the Customer in the 12 months immediately before the date the liability arose (or, where the liability arises in the first 12 months, the Fees that would be payable in the first 12 months).

11.4.

Nothing in clause 11.2 or 11.3 limits either party’s liability under the indemnities in clause 10, or for breach of clause 8 (Confidentiality), for which the limit in clause 11.3 applies but the exclusions in clause 11.2 do not apply to direct losses.

11.5.

Except as expressly stated in this Agreement, and subject to clause 11.1, all warranties, representations, conditions and other terms implied by statute or common law are excluded to the fullest extent permitted by law.

12.1.

Either party may terminate this Agreement for convenience with effect from the end of the Initial Term, or the end of any Renewal Period, by giving written notice of non-renewal in accordance with clause 2.1.

12.2.

Either party may terminate this Agreement by written notice to the other with immediate effect if the other party:

12.3.

On termination or expiry of this Agreement for any reason:

12.4.

For a period of 30 days after termination or expiry, the Supplier will, on the Customer’s written request, make the Customer Data available for export in a commonly used format. After that period, the Supplier may delete the Customer Data in accordance with the Master Data Processing Agreement, unless required by law to retain it.

13.1.

Neither party is in breach of this Agreement, nor liable for any delay or failure to perform its obligations, if the delay or failure results from a Force Majeure Event.

13.2.

The affected party will be entitled to a reasonable extension of time to perform its obligations. If the Force Majeure Event continues for more than 45 days, the party not affected may terminate this Agreement on 30 days’ written notice.

13.3.

“Force Majeure Event” means an event outside a party’s reasonable control, including natural disaster, epidemic or pandemic, terrorist attack, war or armed conflict, civil commotion or riot, nuclear or chemical contamination, collapse of buildings, fire, explosion or accident, and any labour dispute, strike or lockout (other than of the party seeking to rely on this clause or its group). A lack of funds is not a Force Majeure Event.

14.1.

Publicity. The Supplier may identify the Customer as a customer, and use the Customer’s name and logo, on the Supplier’s website and in marketing materials, subject to the Customer’s brand guidelines. The Customer may withdraw this permission at any time on written notice, and the Supplier will cease further use within a reasonable period. Any case study or quotation attributed to the Customer requires the Customer’s prior written approval.

14.2.

Third party rights. For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement does not give any person who is not a party any right to enforce its provisions. This does not affect any right or remedy that exists apart from that Act.

14.3.

Costs. Each party is responsible for its own legal and other costs in relation to this Agreement.

14.4.

Survival. Clauses 1, 3.3, 3.5, 7, 8, 10, 11, 12.3, 12.4 and 14, and any other clause intended to survive, continue in force after termination or expiry.

14.5.

Relationship of the parties. The parties are independent contractors and not partners, principal and agent, or employer and employee.

14.6.

Assignment. Neither party may assign, subcontract or encumber any right or obligation under this Agreement without the other party’s prior written consent (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety to an Affiliate or to a successor in connection with a merger, acquisition or sale of substantially all of its assets, on written notice.

14.7.

Entire agreement. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings. Each party acknowledges that it has not relied on any representation not set out in this Agreement. Nothing in this clause limits liability for fraud or fraudulent misrepresentation.

14.8.

Variation. No variation of this Agreement is valid unless agreed in writing and signed by an authorised signatory of each party.

14.9.

Severability. If any provision (or part of a provision) is found to be illegal, invalid or unenforceable, it will be modified to the minimum extent necessary to make it valid, and the remainder of the Agreement will continue in force.

14.10.

Waiver. No delay, act or omission by either party in exercising any right or remedy is a waiver of that or any other right or remedy.

14.11.

Notices. Notices under this Agreement must be in writing and sent to the other party’s address or email as set out in the Contract Details. Letters sent within the United Kingdom are deemed delivered 3 Business Days after posting. Emails are deemed delivered on the same day, or the next Business Day if sent after 5pm or on a non-Business Day at the recipient’s location. This clause does not apply to the service of proceedings.

14.12.

Execution. This Agreement is entered into, and takes effect, when the parties sign the Order Form that incorporates it; separate signature of this Agreement is not required. The Order Form may be signed in counterparts, each of which is an original and which together constitute one agreement.

14.13.

Governing law and jurisdiction. This Agreement is governed by the laws of England and Wales. The parties submit to the exclusive jurisdiction of the courts of England and Wales.