WAER SYSTEMS

Associate	means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time;
Confidential Information	means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including without limitation information relating to management, financial, marketing, technical and other arrangements or operations of any Associate, person, firm, or organisation associated with that party;
Control	means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and Controls and Controlled shall be interpreted accordingly;
Documentation	means any documentation and support (including implementation training and ongoing training) provided by Supplier to Customer in the performance of this Agreement;
Force Majeure	means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including without limitation war, strikes, natural disaster or adverse weather conditions;
Intellectual Property Rights	means copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, mask works, utility models, domain names and all similar rights and, in each case: (a) whether registered or not, (b) including any applications to protect or register such rights, (c) including all renewals and extensions of such rights or applications, (d) whether vested, contingent or future and (e) wherever existing;
Licence Fee	means the licence fee referred to in clause 6 (Fees and expenses)
Software	the warehouse management system WAERlinx referred to in clause 3 (Software) including the Documentation, support and service components therein described.
Specification	means the specification for the Software agreed between the parties and set out in any Work Order comprising a Schedule of any Channel Partner Agreement; and
VAT	means: (a) value added tax as defined in the Value Added Tax Act 1994 and (b) any similar tax in any other jurisdiction.

Interpretation

In this Agreement, unless the context otherwise requires:

the singular includes the plural and vice versa;
references to subclauses, clauses or Schedules are to subclauses, clauses or Schedules of this Agreement;
references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);
‘including’ (or similar words) means including without limitation;
clause headings do not affect their interpretation; and
references to legislation (including any subsidiary legislation) include any modification or re-enactment thereof.

Duration

Supplier shall license and supply the Software to Customer as set out in Schedule 1. This Agreement shall continue from the Commencement Date for the Initial Period at which point it will be renewed for successive periods of 36 months unless terminated earlier:

by either party on 90 days prior written notice, such notice not to be served before the end of the Initial Period; or
in accordance with clause 17 (Termination) of this Agreement.

Software

Supplier shall supply to Customer the software (the Software) as set out in Schedule 1:
The Software licensed under this Agreement shall be deemed to include all related Documentation (in whatever form).
The Software licensed under this Agreement shall include any updates, upgrades, new releases or new versions of the Software unless separately agreed under the terms of a software maintenance agreement or similar as agreed by the parties.

Grant of licence

Supplier grants Customer a licence to use the Software subject to the following licence conditions:

Exclusivity: the licence is non-exclusive;
Transferability: the licence is non transferable and cannot be sublicensed;
Location: the licence relates to the use of the Software at the location as set out in this EULA.
Purpose: the Software may only be used in connection with the Customer’s own business purposes under any Preconditions set out in Schedule 1 subject to other restrictions on use in clause 5 (Use of Software) below.

Delivery and installation:

Supplier shall use all reasonable endeavours to deliver and install the Software (including any Documentation) to Customer at the location and on the date (the ‘Delivery Date’) as set out in Schedule 1.

Use of the Software

Customer shall not use the Software contrary to any restriction stated in this Agreement.

Except as expressly agreed by the parties to this Agreement, Customer’s rights to use the Software does not permit it to:

distribute, license, sell or otherwise deal in or encumber the Software;
translate, adapt, disassemble, reverse engineer or decompile the Software (or any part of it), nor make any modifications, additions or enhancements to it;
combine, merge or otherwise permit the Software (or any part of it) to become incorporated in any other program, nor arrange or create derivative works based on it;
copy the Software and Documentation (or any part of it), except for such back-ups as are reasonably necessary, provided that Customer keeps accurate and up-to-date records of such copying containing such information as Supplier reasonable requests;
use the Software on behalf of or make it available to any third party or allow or permit a third party to do so.

Fees and expenses

Customer shall pay Supplier an implementation fee (the Licence Fee) as set out in Schedule 2 for the licence to use the Software under this Agreement. The Licence Fee shall be payable on the terms set out in Schedule 2.

Taxes and duties

All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by Customer at the rate and in the manner for the time being prescribed by law.

Invoicing and payment timetable

Supplier shall invoice Customer electronically to the email address notified by Customer in writing to Supplier for all sums due under this Agreement.
Customer shall pay such sums in full without set-off or counterclaim.

Interest

Where sums due here under are not paid in full by the due date, Supplier may, without limiting its other rights, charge interest on such sums at 5% a year above the base rate of the Bank of England from time to time in force.
Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.

Limits on liability

Subject to the following sub clauses, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:

the value of the annual licence fee in respect of any one claim or series of related claims; and
provided that this shall be subject to an overall limit of two times the annual licence fee under this Agreement in respect of any and all claims, losses and damages arising under or in connection with this Agreement.
Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any loss of profits, business opportunity, goodwill, data, anticipated savings or any special, indirect or consequential loss or damage whatsoever.
The above limits on liability shall limit either party’s financial liability for any indemnities provided by either party under this Agreement including without limitation the indemnity under clause 13 (Intellectual Property Rights indemnity).
The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.

Notwithstanding the above neither party excludes or limits any liability for:

personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees; or
fraud or fraudulent misrepresentation; or
any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
any other liability to the extent the same cannot be excluded or limited by law.

Warranties

Supplier warrants and represents to Customer that:

Supplier has the right, power and authority to enter into this Agreement and grant to Customer the rights (if any) contemplated herein and supply the Software;
the Software will conform and perform according to the Specification in all material respects, when used in the manner directed or recommended by Supplier in writing;
the Documentation will provide users with adequate instructions to enable them to effectively use the Software;
the Software and the media on which the Software is delivered will be free from defects in workmanship and materials, and free from viruses and other malicious code when supplied; and
the Software does not infringe the Intellectual Property Rights of any third party.

The warranties (and representations) specified in the above clauses are subject to Customer giving notice to Supplier as soon as it is reasonably able upon becoming aware of the breach of warranty (or representation) but in the case of a warranty (or representation) as to conformance and performance according to the Specification, such notice must be given within 30 days (Warranties).

Upon notification in writing Supplier undertakes to use all reasonable endeavours to remedy any fault arising from a breach of sub clause 1 (Warranties) within 30 days after notification. In the event of breach of sub clauses 11.1.2 and 11.1.4 if Supplier rectifies such fault within such time then it will have no other liability of any kind in respect of the fault. Such remedy shall be free of charge to Customer unless the fault is found not to arise from a breach of sub clause 11.1 (Warranties), at which point Customer shall pay all reasonable and demonstrable costs and expenses associated with the fault incurred by Supplier.

Supplier does not warrant or represent that the Software shall be:

uninterrupted or error free;
compatible with third party software or equipment, other than that described in the Specification.

All other warranties and representations as to the Software, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.

Any warranties given by Supplier shall be subject to Customer using the Software in compliance with this Agreement and the Documentation, and Supplier shall not be liable under this clause for, or required to remedy, any problem arising from:

Customer’s failure to install any update, fix or improvement previously provided to it by Supplier;
any modification made to any part of the Software by anyone other than Supplier without its express prior written consent; or
any defect or error wholly caused by any equipment or third party software used in connection with the Software, other than that described in the Specification.

Intellectual Property Rights

Except for Customer’s licence to use the Software as expressly granted above, Customer shall not acquire in any way, any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Software or in any copies of it and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

Customer acknowledges and understands that the Software contains confidential and proprietary information and it shall not conceal, modify, remove, destroy or alter in any way any proprietary markings of Supplier on or in the Software or any related materials and documentation.

Intellectual Property Rights indemnity

Supplier shall indemnify and keep indemnified and hold harmless Customer from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by Customer as a result of or in connection with any action, demand or claim that use or possession of the Software, infringes the Intellectual Property Rights of any third party (‘Supplier IPR Claim’), provided that Supplier shall have no such liability if Customer:

does not notify Supplier in writing setting out full details of any Supplier IPR Claim of which it has notice as soon as is reasonably possible;
makes any admission of liability or agrees any settlement or compromise of the relevant Supplier IPR Claim without the prior written consent of Supplier (which shall not be unreasonably withheld or delayed);
does not let Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from Supplier IPR Claim; or
does not, at Supplier’s request and own expense, give Supplier all reasonable assistance in the circumstances described above.

If any Supplier IPR Claim is made or is reasonably likely to be made against Customer, Supplier shall promptly and at its own expense either:

procure for Customer the right to continue using and possessing the Software; or
modify or replace the infringing part of the Software and without adversely affecting the functionality of the Software as set out in this Agreement so as to avoid the infringement or alleged infringement, provided that if, Supplier having used its reasonable endeavours, neither of the above can be accomplished on reasonable terms, Supplier shall (without prejudice to the indemnity above) refund the Licence Fees paid by Customer in respect of the Software. Apart from the indemnity given by Supplier above, this shall be Customer’s sole remedy in respect of the Software infringing Intellectual Property Rights.

Mitigation

In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.

Entire agreement

This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and shall have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.

Force Majeure

A party will not be liable if delayed in or prevented from performing its obligations here under due to Force Majeure, provided that it promptly notifies the other of the Force Majeure event and its expected duration, and uses reasonable endeavours to minimise the effects of that event.

If, due to Force Majeure, a party is unable to perform a material obligation, or is delayed in or prevented from performing its obligations for a continuous period of more than 60 days, the other party may, within a further 14 days terminate this Agreement on notice, otherwise this Agreement shall continue in full force and effect.

Termination

Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement if the other:

is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or
is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

Customer may without prejudice to its other rights and remedies by notice in writing to Supplier immediately terminate this Agreement if Supplier ceases carrying on business in the United Kingdom, or if Supplier or any of its Associates undergo a change of Control that is in Customer’s reasonable opinion likely to have a material adverse effect on Customer or the provision of the Software.

In the event of termination of this Agreement for any reason, each party shall within 14 days return or destroy (at the other party’s option) all the other party’s Confidential Information in its possession or under its control and all copies of such information. In addition, in the event of Customer’s breach of this Agreement, Customer shall return all copies of the Software and Documentation (and deactivate access codes or keys) and cease all use of the same.

Notices

Notices under this Agreement must be in writing and sent to the other party’s registered office (or such other applicable address for service agreed by the parties from time to time in writing). Notices may be given, and will be deemed received if correctly addressed:

by first-class post: two days after posting;
by airmail: seven days after posting; and
by hand: on delivery.

Confidential Information

Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.

The provisions of this clause shall not apply to information which:

is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
is independently developed by the recipient, without access to or use of such information; or
is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.

The obligations under this clause shall survive the variation, expiry or termination of this Agreement for a period of five years thereafter.

General

Time of delivery of the Software and the Delivery Date are not of the essence under this Agreement.
Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
Provisions which by their terms or intent are to survive termination of this Agreement will do so.
The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
The Supplier may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part. The Customer may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the prior written consent of the Supplier or except as expressly permitted in this Agreement.
No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory.
If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholding of any kind now or in future imposed in any jurisdiction.
The amounts due under this Agreement shall not change except as mutually agreed by the parties.
Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

Counterparts

This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when executed and delivered shall be an original, and such counterparts taken together shall constitute one and the same agreement. This Agreement shall not be effective until each party has signed one counterpart.

Governing law and jurisdiction

This Agreement is governed by the law of England and Wales. All disputes under this Agreement shall be subject to the exclusive jurisdiction of the courts of England and Wales.

Application and Support Agreement – Schedule 1

Waer Systems Limited

Date:

SERVICES

Waer Systems will provide Application support services more particularly described in Appendix B

COMMENCEMENT DATE

INTIAL PERIOD

This Agreement shall commence on the Commencement Date and shall continue for a period of 36 months (“the Initial Period”) at which point it will be renewed for successive periods of 36 months unless terminated earlier in accordance with the terms of this Agreement.

LOCATION

The Application shall be primarily located at Amazon Web Services. Other systems hosting the Application may be located at client sites in future.

QUARTERLY CHARGE

Periodic payments as varied from time to time in accordance with the provisions of this Agreement, and payable quarterly in advance, unless otherwise agreed.

APPLICATIONS SUPPORTED

The Application supported is WAERlinx developed by Waer Systems for The Customer and accepted by Waer Systems.

DESIGNATED WAER SYSTEMS CONTACT

Name:

Title:

Tel:

Email:

EULA NUMBER

RESPONSE TIMES

Priority Level	Max. Response Time	Target Resolution Time	Example	Escalation
P1 Immediate	30 minutes	Same day within hours of initial assignment by customer to Waer. These issues take priority over all other support & development Issues.	An example of such an issue is the removal of content from the live site (i.e. setting potentially business-damaging content offline).	Automatic immediate escalation to 1st and 2nd Level
P2 Urgent	60 minutes	1 working day	(e.g. bug on site impacts a launch, users not able to register)	Immediate escalation to 1st Level. Escalation to 2nd Level if target is missed.
P3 High	60 minutes	2 working days	Further definition required	Escalate to 1st Level if target is unsatisfactory or missed
P4 Normal	90 minutes	3 working days	Do not impact the general functionality of the site	Escalate to 1st Level if target is unsatisfactory or missed
P5 Low	90 minutes	When possible. All outstanding P5 issues are to be reviewed at the SLA Review	No negative impact to general functionality of the site.	Escalate to 1st Level if target is unsatisfactory or missed

In the case of persistent non-conformance to these targets, restoration times will be reviewed at the operational meetings.

INITIATING A SUPPORT CALL

The contact points for logging a support call are: support@waersystems.info

ESCALATION PROCEDURE

Escalation Contact Numbers (during Business Hours):

1st Level:

Client Success

DDI Number

Mobile

Alternative 1st Level:

Integrator

DDI Number

Mobile Number

Account Management

Managing Director

DDI Number

Mobile Number

Appendix B – Specific Support Tasks Provided

Support provided under this contract by Waer Systems is limited to 2nd and 3rd line support. 1st line support provided by the WAERlinx super user at the customer site.

Additional cover

Additional cover can be provided as detailed below. [Costs for additional cover are detailed in the Schedule 2, Cost summary.]

Provision of support during UK public holidays and weekends:

If required, an application support analyst can be placed on Standby alert. The hours of cover will be the same as the working week 08:00 – 17:30 UK TIME.

Provision of support 24×7:

WAER can provide 24×7 support subject to customer specific prior arrangement. Contact WAER to discuss if required.

Schedule 2

On-Going Monthly Licensing Cost

Description Cost Per Month £ Sterling

For up to 15 named users including all support, patch upgrades and interface running costs

£950.00

Should the licence fee ceiling be breached then the next pricing tier will be applied.

WAERlinx Licence Fee Pricelist – £ Sterling
User Number Tier	Cost Per Month	Annual Cost	PCM Per Extra User*
Up to 15 Users – SME	£950.00	£11,400.00	£95.00
Up to 25 Users – SME+	£1,500.00	£18,000.00	£60.00
Up to 50 Users – Bronze	£2,000.00	£24,000.00	£40.00
Up to 75 Users – Silver	£2,500.00	£30,000.00	£33.33
Up to 100 Users – Gold	£3,000.00	£36,000.00	£30.00
Up to 250 Users – Platinum	£5,000.00	£60,000.00	£20.00
250-500 Users – Enterprise	£7,500.00	£90,000.00	£15.00

Interfaces – Each	£100.00	£1,200.00

Additional Warehouses		£5,000.00
Interface Implementation		£5,000.00

Development Daily Rate		£825.00

* = Up to a maximum of 5 extra users before the next tier applies

Payment Notes

Payment Terms are Net Monthly
Please note that WAERlinx licence fees are due when the SoW (Statement of Works) is submitted to the customer for signature.