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 anon-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 as part of the Cloud-Based Services or
  
  2.2.2 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 ofthe instructions or statements contained in the Software and
  
  2.2.2.1 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 and;
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  2.2.2.2 storing the Software on the permanent memory ofthe System; and;
  
  2.2.2.3 utilising (but not copying) any instructional and/or operational manuals relating to the Software.
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• 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

• The Client authorises Zylpha to automatically charge the Client’s Designated Payment Method at the beginning of each Subscription Period starting at the Effective Time.
  
• On receipt of cleared payment of the Charges by the Client, the Subscription Period will automatically renew for a further Subscription Period unless and until cancelled by the Client prior to the end of the previous Subscription Period in accordance with Clause 11 of this Agreement.
• 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 Support Service shall be provided byreference to the Licence Type as follows:
  
  4.4.1 Zylpha shall not be obliged to provide the Support Service in respect of the Free Service.
  
  4.4.2 In the case of a Solo Licence Type the Support Service shall be provided by any reasonable means as shall be agreed between the parties including (but not limited to) telephone, email, remote access and online chat.
  
  4.4.3 In all other cases 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 inrelation 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 inconnection 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 toan 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 ofthis 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 this 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 abreach 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 provisionby 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 expressor implied (by statute or otherwise) are excluded to the fullest extent permitted by law.
• In this clause 6, a reference to liability meansany 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 otherundertaking 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

• No marketing material will be published without the prior written 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, become is public knowledge; or
  
  8.2.2 required to be disclosed by law.
• The Client agrees and consents to Zylpha retaining anonymised statistical and usage data relating to the usage of the Software by the Client which is reasonably necessary for the provision and improvement of the Services by Zylpha.

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 at anytime either by:
  
  11.1.1 In the case of a Solo Licence Type, by deactivating auto renewal from within the Software prior to the end of the current Subscription Period.
  
  11.1.2 In all other cases, 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 11.1.2, the agreement shall terminate at the expiration of the current Subscription Period provided that the Agreement has been in place for the Term (if any) specified on the Order.
• Zylpha may terminate this Agreement as follows:
  
  11.2.1 In the case of the Free Service if the Client has not logged into the Software for a period of 30 consecutive days or more in which case Zylpha will remove the Client’s access to the Software.
  
  11.2.2 In the case of a Solo Licence Type if the Client does not renew the subscription at the end of the current Subscription Period in which case Zylpha will remove the Client’s access to the Software.
  
  11.2.3 If the Client’s access to the Software is removed by operation of clause 11.2.1 or 11.2.2 of this Agreement Zylpha will, without further reference to the Client, permanently delete the Client’s account  together with all account data, bundles, metadata, source documents and converted documents after a further period of not less than 30 days following removal of the Client’s access at which point this Agreement will terminate.
• 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 part may terminate this Agreement immediately by written notice if:
  
  11.4.1 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
  
  11.4.2 An administration order is made, or a receiver or administrative receiver is appointed, over any of its property or assets; or
  
  11.4.3 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:
  
  11.5.1 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
  
  11.5.2 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

• Zylpha reserves the right to amend the terms and conditions of this Agreement. Such amendments shall be effective upon Zylpha sending a written notice, including the amended copy of the Agreement or a digital link thereto, to the Client. Zylpha shall send the notice to the Customer's last known email address specified by the Customer for communication purposes.
• The Client acknowledges that it is its responsibility to regularly review communications from Zylpha and promptly inform Zylpha of any changes to their contact details. Failure to receive or notice any amendments due to outdated contact information shall not relieve the Client of their obligations under the amended Agreement.
• 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 asset out in this Agreement or any other address notified by the other party inaccordance 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:

a) any improper use, misuse or unauthorised alteration of the Software by the Client;
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b) any use of the Software by the Client in a manner inconsistent with the then-current Documents;

c) modification of the Software by, or on behalf of, the Client or any third party or the merger of the Software (in whole or inpart) with any other software;

d) failure of any hardware, any network, cabling,peripheral or telecommunication equipment or the effect of lightning or any electricalfault;

e) operation of the Software by individuals who had not received appropriate training and achieved any standard reasonably required by Zylpha;

f) failure by the Client to implement recommendations in respect of the Software or rectification of Faults previous supplied by Zylpha;

g) the use by the Client of any hardware or software inassociation with the Software not approved in writing by Zylpha; or

h) 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 orerror referred to in the Service Level Table.

Help Desk Support: support provided by help desk technicians.

Level 1 Response: means a meaningful initial response to the Client including (but not limited to) an initial triage, diagnosis, suggested action by the Client, planned action by Zylpha or other assessment based on the facts reported.

‍Level 2 Response: means a resolution, workaround or plan to address the Fault within the applicable timescales after the Level 1 Response time has elapsed but excluding delays caused by incomplete or delayed information from the Client.

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:

a) correctionof a Fault; or

b) 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: additional charges (if any) 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:
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  a) 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;
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  b) use Commercially Reasonable Efforts to correct Faults notified to it in accordance with this Schedule 1; and
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  c) provide reasonable technical support for the Software subject to this Schedule 1.
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• 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.
• In the case of the Solo Licence Types, Support Requests may only be made by the licenced user. For all other Licence Types, 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:
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  a) prompt notice of any Faults; and
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  b)  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.
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• All Support Service shall be provided remotely to the Client from Zylpha's premises or such other location as Zylpha may decide from time to time.
• 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.
• In the event that the Client does not responded to a request for further information or other assistance reasonably requested by Zylpha in its attempts to resolve the Support Request within 5 Business Days of its receipt, Zylpha shall be entitled to regard the Support Request as resolved.

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

• Zylpha shall;
  
  a) prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported; and
  
  b) 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 acceptany 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:

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

3. Zylpha shall give the Client regular updates ofthe 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 the Managing Director at Zylpha or, if unavailable, to other appropriate senior management team member.

Schedule 2: Data Protection

1.1 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) asamended (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.

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

1.3 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.

1.4 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:

a) 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;

b) 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);

c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

d) 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.
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e) 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
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f) 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.

1.5 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.