Zylpha Ltd: Licence Agreement

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1. Definitions

In relation to the Support Service:

2. Use of software

• On and with effect from the Effective Time, and subject always to payment of the Charges (save in the case of any Free Service) and otherwise to the terms of this agreement, Zylpha grants to the Client a non-exclusive Licence to use the Software as part of the Services and solely for the purposes of its business.
• For the purposes of the Licence, “use” shall mean and include (and the Client shall not use the Software and any related documentation other than as described below):
  
  2.2.1 utilisation of the Software by copying, transmitting or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk) of the System for the processing of the instructions or statements contained in the Software or utilisation of the Software as part of the Cloud-Based Services, as the case may be;
  
  2.2.2 copying the Software in machine-readable form for back-up, provided that no more ​than two such copies will be in existence at any one time;
  
  2.2.3 storing the Software on the permanent memory of the System; and
  
  2.2.4 utilising (but not copying) any instructional and/or operational manuals relating to the Software.
• Nothing in this Licence shall permit the Client to modify or reverse engineer the Software.
• The Client agrees and undertakes not to provide to any other person, including unrelated and related third parties, a copy of the Software or of any part of the Software.

3. Charges and basis of charging

• Where the Licence Type is “Solo”:-
  
  3.1.1 On and with effect from the Effective Time, the Client shall pay to Zylpha the Charges.
  
• Where the Licence Type is "Team":-
  
  3.2.1 The Client shall pay to Zylpha the Charges monthly in arrears in such manner as shall be agreed on the Order, the first such payment to be made on or about the first day of the month following the calendar month in which the Effective Time falls and subsequent payments to be made on or about the first day of each succeeding calendar month.
  
  3.2.2 To the extent the Licence is in relation to Bundling, any re-creation of a Unique Bundle without material modification, addition or amendment will not be subject to further Charges hereunder PROVIDED THAT, in the event of any dispute or disagreement as to whether there has been material modification, addition or amendment to a Unique Bundle, thereby creating a new Unique Bundle which is subject to further Charges hereunder, Zylpha’s determination on such matter shall be final and binding upon the Client.
• Where the Licence Type is "Enterprise":-
  
  3.3.1 On and with effect from the Effective Time, the Client shall pay to Zylpha the First Year Charges and the Installation Charge and the Additional Consultancy Charge.
  
  3.3.2 The Client shall pay to Zylpha annually on each anniversary of the Effective Time the Subsequent Years Charges.
  
• Zylpha may increase the Charges from each anniversary of the Effective Time by such percentage as is equal to the percentage increase over the preceding 12 months in the Retail Prices Index published for the month immediately preceding such anniversary date.
• All charges referred to in this agreement are exclusive of VAT and all other taxes or duties. 

4. Maintenance and upgrades

• In relation to Cloud-Based Services, upgrades and enhancements will be applied automatically.
• Where the Services are hosted by the Client, Zylpha may from time to time offer to the Client upgrades to and enhancements of the Software free of charge.
• The Client is not required to use such upgrades or enhancements as are referred to in clause 4.2 but Zylpha shall not be required to provide the Support Service except in respect of the current release level from time to time of the Software incorporating such upgrades and enhancements.
• The Client agrees that it shall ensure that any user of the Software who requires support in relation thereto shall first contact the Maintenance Contact and the Maintenance Contact shall use reasonable endeavours to resolve the issue. No user of the Software or any other person acting on behalf of the Client shall contact Zylpha in relation to support other than the Maintenance Contact, notice of whose appointment shall from time to time be given to Zylpha by the Client. There shall be no more than one Maintenance Contact from time to time other than with the prior written consent of Zylpha.

5. Intellectual property rights

• The Client acknowledges that any and all of the copyright and other intellectual property rights subsisting in or used in connection with the Software and all documentation and manuals relating to the Software are and shall remain the sole property of Zylpha (or its third party licensors) and the Client shall acquire no rights whatsoever therein.
• The copyright and other intellectual property rights in data and material belonging to the Client and made available to Zylpha pursuant to this agreement including (without limitation) data input onto databases using the Software by, or on behalf of, the Client shall remain the sole property of the Client.
• The Client undertakes that Zylpha shall be given prompt notice of any claim made against the Client arising from or relating to an allegation that the intellectual property rights of a third party are being infringed by use of the Software. Zylpha shall have the right to defend any such claims and make settlements thereof at its own discretion and the Client shall give such assistance as Zylpha may reasonably require to settle or oppose any such claims.
• In the event that any such infringement occurs or may occur, Zylpha may at its sole option and expense:​
  
  i) procure for the Client the right to continue using the Software or infringing part thereof;
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  ii) modify or amend the Software or infringing part thereof so that the same becomes non-infringing; or
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  iii) replace the Software or infringing part thereof by other software of similar capability.

6. Warranties and liability

• Zylpha warrants that, for a period of 90 days from the Effective Time, the Software will in all material respects conform to, and perform in accordance with, the descriptions and specifications of the Software specifically made available to the Client by Zylpha before the date of this agreement.
• Zylpha warrants that it is the owner of, or has the necessary licences to, the Software.
• Zylpha warrants that (save as provided for in the agreement) there are no disabling programs or devices in the Software and that Zylpha has used reasonable endeavours to ensure that the Software is free from viruses.
• Zylpha warrants that it will provide the Support Service with reasonable skill and care and in accordance with Schedule 1 in all material respects.
• The Client acknowledges and agrees that the Software cannot be and is not wholly error- free and free from viruses and agrees that the existence of such errors and viruses shall not constitute a breach of this agreement.
• Zylpha shall not be liable to the Client for any indirect or consequential loss or damage which may arise from or in respect of the Software or its use or the provision by Zylpha of the Support Services.
• Zylpha shall not be liable to the Client for any loss of business, loss of profits, loss of anticipated savings, loss of reputation, loss of goodwill or business interruption or increase in bad debts arising out of or in connection with the Software or its use or the provision by Zylpha of the Support Services, whether or not Zylpha had notice of the possibility of such loss.
• Zylpha’s entire aggregate liability in respect of all claims arising out of or in connection with this agreement or its subject-matter shall not exceed the greater of the Charges paid in the 12-month period prior to the date on which a cause of action arose or £10,000.
• Regardless of any other term of this agreement, Zylpha does not limit or exclude liability for:
  
  6.9.1 death or personal injury arising from its negligence or the negligence of its employees, agents or authorised representatives; or
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  6.9.2 fraud or fraudulent misrepresentation.
• Except as expressly provided in this agreement, all conditions and warranties and terms of equivalent effect, whether express or implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
• In this clause 6, a reference to liability means any liability whatsoever including, without limitation, liability for breach of contract, breach of law or statutory duty or tort (including negligence).
• Save to the extent required by applicable law, Zylpha gives no warranty, representation, assurance, covenant or other undertaking whatsoever in relation to any Free Service (and, without limitation, clauses 6.1, 6.2, 6.3 and 6.4 shall not apply in relation thereto) and all liability of Zylpha in relation to any Free Service is wholly excluded.

7. Marketing

• The parties agree to participate in marketing activity as a result of this agreement to include (but not limited to) press releases, case studies and marketing material. No marketing material will be published without the prior consent of both parties.

8. Confidentiality

• Each party shall in respect of the other party’s Confidential Information keep the Confidential Information in strictest confidence and not make any of the Confidential Information available to any third party and shall use the Confidential Information only for the purposes of this agreement and shall ensure that only those of its employees who need to have access to the Confidential Information shall have such access.
• The provisions of clause 8.1 shall not prevent the disclosure or use by a party of any information to the extent that such information is:
  
  8.2.1 through no fault of the disclosing party, becomes public knowledge; or
  
  8.2.2 required to be disclosed by law.
• The provisions of clause 8.1 shall not prevent the transmission by Zylpha of any Client documents requiring conversion to pdf to Zylpha’s third-party online conversion service via an SSL (https) link.
• The Client agrees and consents to Zylpha holding statistics relating to usage of the Software by the Client which are reasonably necessary for the provision of the Services by Zylpha, including, without limitation:-
  
  - All account related data
  - Date/time a new bundle is started
  - Date/time a pdf output is created
  - Date/time a bundle is savedUnique identity of a bundle
  - User id
  - Date/time changes were made to Cover page and index settings

9. Compliance with law

• Zylpha and the Client shall at all times comply with all applicable laws, regulations and rules having equivalent effect which relate to the Software or the subject matter of this agreement.
• Schedule 2 shall apply in relation to data protection.

10. Force majeure

• Neither party shall be liable to the other for any delay or non-performance of its ​obligations under this agreement, other than obligations to pay money, arising from any cause beyond its reasonable control, including (without limitation) strikes and other forms of industrial action, national emergencies, failure of utilities and telecommunications.

11. Termination

• The Client may terminate this agreement by giving not less than one month’s notice in writing to Zylpha. So long as the notice is served in accordance with this clause 11.1, the agreement shall terminate on the next anniversary of the Effective Time provided that the agreement has been in place for the Term (if any) specified on the Order or on the expiry of the notice whichever is the later.
• Either party may terminate this agreement immediately by giving written notice to the other if that other commits any material breach of this agreement (including where the Charges are not paid in accordance with the provisions of clause 3.1 or clause 3.2) and such breach (where capable of remedy) is not remedied to the reasonable satisfaction of the non-defaulting party within 14 days of having received written notice specifying the breach and requiring its remedy. Where the Charges are not paid in accordance with the provisions of clause 3.1 or clause 3.2, Zylpha may forthwith suspend use by the Client of the Software without notice.
• Either party may terminate this agreement immediately by written notice if:
  
  11.3.1 A resolution is passed or an order is made for winding up (save for the purpose of a bona fide reconstruction or amalgamation) or bankruptcy; or
  
  11.3.2 An administration order is made, or a receiver or administrative receiver is appointed, over any of its property or assets; or
  
  11.3.3 That party is dissolved or is insolvent or would be taken to be insolvent under section 123 of the Insolvency Act 1986.
• Upon the termination of this agreement for any reason whatsoever, the Client shall:
  
  11.4.1 Promptly return to Zylpha or delete (as Zylpha shall instruct) all copies of the Software and all other information and material supplied by Zylpha to the Client; and
  
  11.4.2 Provide to Zylpha a certificate signed by, or by a duly authorised officer on behalf of, the Client, certifying that the Client has complied with the provisions of this clause.
  
• Termination of this agreement shall not affect the rights of either party in relation to any antecedent breach nor any continuing obligations of either party.
  

12. Assignment

• Zylpha shall be entitled to sub-contract the performance of any of its obligations under this agreement, provided that Zylpha shall remain liable for the discharge of those obligations.
• Neither party may assign or otherwise transfer this agreement or any part of it without the prior written consent of the other party, such consent not to be unreasonably withheld or ​delayed.

13. Waiver

• Failure to exercise, or delay in exercising, a right or remedy provided by this agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this agreement or of a default under this agreement does not constitute a waiver of any other breach or default and shall not affect the other terms of this agreement.

14. General

• No variation of this agreement shall be valid unless it is in writing and signed by, or on behalf of, each of the parties.
• If any term or provision of this agreement (or any part of such term or provision) is found by any Court or administrative body to be invalid or unenforceable for any reason, such term or provision shall to that extent be deemed to be removed from and not form part of this agreement, but the validity and enforceability of the remainder of this agreement shall not be affected.
• This agreement (and the documents referred to in it) constitutes the entire agreement between the parties in respect of the subject matter of this agreement and supersedes all other agreements, statements, representations (save fraudulent) or warranties made by or between the parties or any of them concerning the same. No statements or representations made by either party have been relied upon by the other in agreeing to enter into this ​agreement.
• The headings in this agreement are included for convenience only and shall not affect the interpretation of this agreement.
• Any notice to be given by either party to the other under this agreement shall be deemed to have been received if left at or sent by first class post or email transmission to the other party’s address as set out in this agreement or any other address notified by the other party in accordance with this clause. Any such communication shall be deemed to have been received by the other party if sent by post, on the second day from the date of posting (and in proving such service or delivery, it shall be sufficient to prove that such communication was properly addressed, stamped and put in the post) and, if by email transmission, at the time of transmission.
• This agreement shall be governed by and construed in accordance with English law and the parties irrevocably agree to submit to the non-exclusive jurisdiction of the English courts.

Schedule 1: Support Service

1. Definitions

The following definitions apply in this schedule.

Business day: a period of time between 9am and 5.30pm Monday to Friday excluding national and public holidays in England.

Commercially reasonable efforts: the same degree of priority and diligence with which Zylpha meets the support needs of its other similar customers.

Client cause: any of the following causes:

• any improper use, misuse or unauthorised alteration of the Software by the Client;
• any use of the Software by the Client in a manner inconsistent with the then-current Documents;
• modification of the Software by, or on behalf of, the Client or any third party or the merger of the Software (in whole or in part) with any other software;
• failure of any hardware, any network, cabling, peripheral or telecommunication equipment or the effect of lightning or any electrical fault;
• operation of the Software by individuals who had not received appropriate training and achieved any standard reasonably required by Zylpha;
• failure by the Client to implement recommendations in respect of the Software or rectification of Faults previous supplied by Zylpha;
• the use by the Client of any hardware or software in association with the Software not approved in writing by Zylpha; or
• the use of a non-current version or release of the Software.

Documents: any documents, instructions or specifications provided by Zylpha in connection with the Software;

Fault: any failure of the Software to operate in all material respects in accordance with the agreement, including any failure or error referred to in the Service Level Table.

Help desk support: support provided by help desk technicians.

Maintenance Contact: has the meaning given in the agreement.

Out-of-scope services: any services provided by Zylpha in connection with any apparent problem regarding the Software reasonably determined by Zylpha not to have been caused by a Fault, but rather by a Client Cause or a cause outside Zylpha’s control (including any investigational work resulting in such a determination).

Service level table: the table set out in paragraph 5 of this Schedule 1.

Software: has the meaning given in the agreement.

Solution: either of the following outcomes:

• correction of a Fault; or
• a workaround in relation to a Fault (including a reversal of any changes to the Software if deemed appropriate by Zylpha) that does not materially change the Software.

Support charges: charges levied or incurred in relation to the Support Service

Support Hours: between 9am and 5.30pm Monday to Friday excluding national and public holidays in England.

Support Period: the term of the agreement.

Support Request: a request made by the Client in accordance with this Schedule 1  for support in relation to the Software, including correction of a Fault.

Support Service: maintenance of the then-current version or release of the Software, including Help Desk Support, but excluding any Out-of-scope Services.

2. Support Service

Subject to clause 2.6, during the Support Period, Zylpha shall provide, or procure the provision by a third-party contractor of, the Support Service during the Support Hours in accordance with this Schedule 1.

As part of the Support Service, Zylpha shall:

• provide (or procure the provision by a third-party contractor of) Help Desk Support by means of the following telephone number 01962 658881 and e-mail address support@zylpha.com or by means of such other telephone number or email address as notified to the Client by Zylpha from time to time;
• use Commercially Reasonable Efforts to correct Faults notified to it in accordance with this Schedule 1; and
• provide reasonable technical support for the Software subject to this Schedule 1.

Zylpha may reasonably determine that any services to be provided in connection with the Software are Out-of-scope Services. If Zylpha makes any such determination, it shall promptly notify the Client of that determination.

The Client acknowledges that Zylpha is not obliged to provide Out-of-scope Services.

No person other than the Maintenance Contact shall make Support Requests.

Zylpha shall have no obligation to provide the Support Service or any support whatsoever in relation to any Free Service.

3. Fees

The provision of the Support Service on a remote, off-site basis (such as over the telephone or by e-mail) within the Support Period shall be included in the Support Charge.

4. Submitting support requests and access

The Client may request Support Service by way of a Support Request.

Each Support Request shall include a description of the problem and the start time of the incident.

The Client shall provide Zylpha with:

• prompt notice of any Faults; and
• such output and other data, documents, information, assistance and (subject to compliance with all Client’s security and encryption requirements notified to Zylpha in writing) remote access to the Client System, as are reasonably necessary to assist Zylpha to reproduce operating conditions similar to those present when the Client detected the relevant Fault and to respond to the relevant Support Request.

All Support Service shall be provided from Zylpha’s premises.

The Client acknowledges that, to properly assess and resolve Support Requests, it may be necessary to permit Zylpha direct access at the Client’s premises to the Client System and to the Client’s files, equipment and personnel.

The Client shall provide such access promptly, provided that Zylpha complies with all the Client’s security requirements and other policies and procedures relating to contractors entering and working on the Client’s premises notified in advance to Zylpha.

5. Response obligations of Zylpha in connection with the Support Service

Zylpha shall:

• prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported; and
• use all reasonable endeavours to respond to Support Requests in accordance with the responses and response times specified in the table set out below, save that Zylpha shall not have any obligation to accept any enhancement request, and shall not be in breach if it decides not to accept any enhancement request:

Faults will be categorised as set out in the table below by Zylpha in its reasonable opinion at the time each Fault is reported.

Zylpha may subsequently change the priority of such a Fault if it is reasonable to do so in the circumstances.

Zylpha shall use all reasonable endeavours to provide a response, resolution, workaround or plan to address the Fault within the following applicable timescales:

The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the response times.

Zylpha shall give the Client regular updates of the nature and status of its efforts to correct any Fault.

6. Escalation

If a Solution is not provided within the relevant response time set out in paragraph 5.1, the Client may escalate the Support Request to Zylpha’s relevant relationship manager and then to Zylpha senior management as identified below:

Tim Long - Managing Director

Schedule 2: Data Protection

Both the Client and Zylpha will comply with all applicable data protection and privacy legislation in force from time to time in the UK including the UK General Data Protection Regulation; the Data Protection Act 2018; and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) as amended (Data Protection Legislation). This paragraph 1.1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

Both the Client and Zylpha acknowledge that, for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

Without prejudice to the generality of paragraph 1.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Zylpha for the duration and purposes of this agreement.

Without prejudice to the generality of paragraph 1.1, Zylpha shall, in relation to any personal data processed in connection with the performance by Zylpha of its obligations under this agreement:

• process that personal data only in accordance with the provisions of this agreement or otherwise on the documented written instructions of the Client unless Zylpha is required by applicable laws to otherwise process that personal data;
• ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
• not transfer any personal data outside of the European Economic Area unless the express agreement of the Client has been obtained from time to time.
• at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by applicable law to store the personal data; and
• maintain complete and accurate records and information to demonstrate its compliance with its obligations under this Schedule 2 and immediately inform the Client if, in the opinion of Zylpha, an instruction infringes the Data Protection Legislation.

The Client consents to Zylpha appointing such third-party processor or processors as shall be specified on Zylpha’s website from time to time as third-party processor of personal data under this agreement in connection with conversion of non-pdf documents into pdf documents. Zylpha confirms that it has entered into, or (as the case may be) will enter into, with any such third-party processor a written agreement which Zylpha confirms reflects and will continue to reflect the requirements of the Data Protection Legislation.