HOSTED CLOUD APPLICATION - TERMS OF USE

IMPORTANT: THIS IS A LEGALLY BINDING AGREEMENT

BY SUBSCRIBING TO USE THE APPLICATION OR BY ACCESSING OR USING THE APPLICATION YOU INDICATE YOUR AGREEMENT TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”)

1. DEFINITIONS

In this Agreement the following terms have the following meanings:-

1.1. “Application” means the online, web-based application service, including offline components, if any, provided by the Licensor as indicated in the online order form.

1.2. “Data Protection Legislation” means the applicable data protection laws in force from time to time including Data Protection Act 1998, the General Data Protection Regulation 2016/679/EU, and all applicable laws and regulations relating to the processing of Personal Data and Privacy from time to time, including where applicable the guidance and codes of practice issued by the Information Commissioner.

1.3. “EU-US Privacy Shield” is a framework for adherence to European Union data protection laws for companies that deal with the private data of E.U. citizens that is transferred to the United States.

1.4. “Documentation” means materials (whether printed or electronic) which we provide to you for the purposes of describing the functionality or operation of the Application.

1.5. “Fault” means any failure of the Application to operate in all material respects in accordance with the Documentation, but excluding any failure or error resulting from (a) operator error or use of the Application in a manner inconsistent with the Documentation; (b) any breach of the Agreement; (c) your failure to implement recommendations in respect of Solutions or Faults previously advised by the Licensor; (d) any improper use, misuse or unauthorised alteration of the Application by you; or (e) your computer equipment or any third party services or products not supplied or approved by the Licensor for use with the Application.

1.6. “Initial Term” the initial fixed term of 1 month commencing on the date indicated in the online order form .

1.7. "Licensor" means Parker Software Limited, Victoria Business Park, Prospect Way, Knypersley, Stoke-on-Trent, Staffordshire, ST8 7PL. United Kingdom.

1.8. “Solution” either of the following outcomes (a) correction of a Fault; or (b) a workaround in relation to a Fault (including a reversal of any changes to the Application if deemed appropriate by the Licensor.

1.9. "You/Your" means the sole trader, partnership or company who wishes to use the Application on the terms of this Agreement.

1.10. “Your Data” means the data inputted by you or on your behalf for the purpose of using the Application or facilitating your use of the Application or data retrieved by you or on your behalf through the Application.

1.11. “Hosted Cloud Location” customers within the EEA will be within the United Kingdom, customers outside of the EEA will either be in United States of America or United Kingdom.

1.12. “Hosted Cloud Provider” customers within the EEA will be within Rackspace United Kingdom, customers outside of the EEA will be within a data centre that we designate meeting our requirements in the United States of America or United Kingdom.

1.13. “Subscription Fee” and “Subscription Package” shall each have the meaning given to them in the online order form.

2. USE OF THE APPLICATION

2.1. In consideration of you abiding by the terms of this Agreement and paying the Subscription Fee in accordance with the payment terms set out in the online order form, the Licensor grants to you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Application and the Documentation in accordance with the Subscription Package and subject to the provisions of the Agreement.

2.2. This Agreement does not transfer or modify any ownership rights related to the Application, which are exclusively held by the Licensor or its licensors.

2.3. You shall keep your user access information secure and confidential. You shall ensure that anyone that uses the Application through your user access does so in accordance with this Agreement. You shall be solely responsible for any third party using the Application through your user access that fails to comply with this Agreement.

2.4. You may use the Application for your business purposes only.

2.5. You shall not:

2.5.1. attempt in any way to circumvent or otherwise interfere with any security precautions, procedural controls, or other measures related to or incorporated into the Application (and the software used in support thereof) or attempt to gain unauthorised access to the Application (and the software used in support thereof) or its related information technology systems or networks;

2.5.2. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

2.5.3. send or store unlawful, infringing, offensive, obscene, discriminatory, threatening or otherwise unlawful, immoral or tortuous material;

2.5.4. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

2.5.5. interfere with or disrupt the integrity or performance of the Application or its related information technology systems or networks or the data contained therein; or

2.5.6. modify, copy, adapt, reproduce, disassemble, decompile, reverse engineer, transmit or distribute any portion of the Application (and the software used in support thereof).

2.6. You shall:

2.6.1. prevent unauthorised access to, or use of, the Application, and notify us promptly of any such unauthorised use; and

2.6.2. comply with all applicable laws and regulations with respect to your activities under the Agreement.

3. SERVICES

3.1. The Licensor shall use reasonable endeavours to make the Application available for 99% of the time in any given month, except for:

3.1.1. planned maintenance carried out during the maintenance window of 22.00 to 06.00 (UK time); and

3.1.2. unscheduled maintenance which will wherever possible (but cannot guaranteed) be performed outside the hours of 09.00 to 17.00 (UK time) Monday to Friday.

If, for any reason, the Licensor anticipates the Application being unavailable for any extended period for maintenance, it will, wherever possible, give you notice of such unavailability.

3.2. If you find a Fault with the Application you should promptly notify the Licensor by sending an email to the email address notified to you by the Licensor for such purposes. The Licensor shall use reasonable endeavours to provide a Solution to such Fault. Time for the provision of such services shall not be of the essence. You warrant that there are no third parties who would have a claim against the Licensor as a result of its provision of such services to you.

3.3. The Licensor shall not be responsible for any charges, losses or delays resulting from it being prevented from or delayed in performing its obligations under the Agreement by any of your acts or omissions or by any of the acts or omissions of those accessing the Application through your user access.

3.4. Notwithstanding the foregoing, the Licensor does not warrant that the Application and/or the information obtained by you through it will meet your requirements or that its operation will be uninterrupted or error free. All warranties, representations or guarantees of any kind, express or implied, including, but not limited to, any implied warranties of quality, merchantability, fitness for a particular purpose or ability to achieve a particular result are excluded.

4. YOUR DATA

4.1. As between the Licensor and you, you shall own all right, title and interest in and to Your Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.

4.2. The Licensor may access your user accounts, including Your Data, for the purposes of providing the Application and performing its obligations under the Agreement. You grant to the Licensor the non-exclusive right to use, copy, store, transmit and display Your Data to the extent necessary to provide the Application and to perform its obligations under the Agreement.

4.3. The Licensor will use reasonable endeavours to archive Your Data on a regular basis and to retain it for the period permitted by your Subscription Package. In the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for the Licensor to use reasonable endeavours to restore such lost or damaged data from the latest back-up of such data maintained by the Licensor in accordance with its archiving procedures. The Licensor shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except for third parties authorised to act on behalf of the Licensor).

4.4. You agree to provide any notices and obtain any consents related to your use of the Application including those relating to the collection, use, transfer and disclosure of personal information. You shall, on request, provide the Licensor with evidence to its reasonable satisfaction that you have such consents.

5. SUBSCRIPTION FEE

5.1. You will pay the Subscription Fee in full (without any set-off, deduction or withholding) by Direct Debit in accordance with the payment terms set out in the online order.

5.2. All amounts and fees stated or referred to in the Agreement are exclusive of, and you shall pay, all applicable taxes, duties and levies ruling at the date of invoice or payment (for payments made by Direct Debit).

5.3. The Subscription Fee shall be fixed for the Initial Term. Thereafter the Licensor may increase the Subscription Fee at any time on 40 days’ written notice to you.

6. OWNERSHIP

6.1. You acknowledge that the Application (including the software used in support thereof) is the Licensor’s (or the Licensor’s licensors) confidential information and that you shall treat it as such and not disclose it to any third party save for those employees, agents, consultants and sub-contractors that are aware that the Application is the Licensor’s (or the Licensor’s licensors) confidential information and are bound to treat it as such. These obligations of confidentiality shall not apply to the extent that the Application is already in the public domain or to the extent that disclosure is required by law or a court of competent jurisdiction.

6.2. You will not attempt in any way to remove, conceal or overwrite any copyright notices or circumvent any technical protection measures incorporated into the Application to protect the Intellectual Property rights in the Application from being misappropriated.

7. LIMITATION OF LIABILITY

7.1. You accept responsibility for the selection of the Application to achieve your intended results and, except as expressly provided in the Agreement, you assume sole responsibility for results obtained from your use of the Application.

7.2. Subject to clause 7.3 and clause 7.4 below the Licensor’s maximum aggregate liability under or in connection with the Agreement whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed an amount equal to the annual Subscription Fee.

7.3. Nothing in this Agreement shall limit or exclude the Licensor’s liability for:

7.3.1. personal injury or death caused directly by the negligence of the Licensor,

7.3.2. fraud or fraudulent misrepresentation; or

7.3.3. any other liability that cannot be excluded or limited by law.

7.4. Subject to clause 7.3 above, in no event will the Licensor be liable to you for any:

7.4.1. lost profits;

7.4.2. lost savings;

7.4.3. loss of data; or

7.4.4. indirect, special, incidental or consequential damages;

arising out of the use of or inability to use the Application, even if the Licensor has been advised of the possibility of such damages.

7.5. Subject to clause 7.3, the Licensor shall be discharged of all liability arising under or in connection with the Agreement unless (without extending statutory limitation) proceedings are begun and served within 12 months after you became aware (or should reasonably have become aware) of the facts giving rise to such liability.

8. TERMINATION

8.1. The Agreement is, subject to earlier termination in accordance with this clause 8, effective for the Initial Term and shall continue thereafter subject to either party serving 30 days’ written notice to terminate on the other party.

8.2. Without limiting its other rights or remedies, the Licensor may suspend its performance of or (whether or not such performance has previously been suspended) terminate the Agreement, without liability to you, by giving you notice in writing at any time or times if you:

8.2.1. fail to make any payment when and as due or otherwise default in any of your obligations under the Agreement;

8.2.2. are unable to pay your debts in the ordinary course of business;

8.2.3. have a receiver, manager, administrator, administrative receiver or trustee in bankruptcy (as the case may be) appointed for all or any part of your undertaking, assets or income, have a resolution passed or a petition presented to any court for your winding up (compulsorily or voluntarily), enter into any composition or arrangement with your creditors (whether formal or informal), have any distraint or execution levied on any of your assets, suffer any action similar to any of the foregoing in any jurisdiction; or

the Licensor bona fide believes any of the foregoing matters may occur.

8.3. The Agreement may be terminated by either party where the other:

8.3.1. breaches a material obligation of the Agreement and, where the breach is remediable, the party in breach has failed to remedy it within 28 days after written notice giving full particulars of the breach; or

8.3.2. repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement.

8.4. If you terminate the Agreement pursuant to clause 8.3, we shall refund you on a pro-rata basis for any unused proportion of the Subscription Fee paid in advance.

8.5. On termination of the Agreement for any reason:

8.5.1. you shall immediately pay all outstanding amounts to the Licensor;

8.5.2. all rights granted to access or use the Application shall immediately terminate and you shall immediately cease to access or use the Application;

8.5.3. the Licensor may destroy or otherwise dispose of any of Your Data that it has in its possession or control unless it receives, no later than 14 days after the date of termination, a written request for the delivery to you of the last back-up (made before the date of termination) of Your Data. The Licensor shall use reasonable endeavours to deliver the back-up to you in the format in which it has been backed up within 45 days of receipt of your written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay the Licensor’s reasonable charges, costs and expenses incurred in returning or disposing of Your Data; and

8.5.4. the accrued rights/remedies of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

9. DATA PROTECTION AND SECURITY

9.1. To the extent that the Licensor processes any “Personal Data” on your behalf when performing its obligations under the Agreement, you and the Licensor record the intention that you shall be the “Data Controller” and the Licensor shall be the “Data Processor” (in each case as defined in the Data Protection Legislation) and in any such case where required by the Data Protection Legislation:

9.1.1. the Licensor shall act only on your documented instructions (which you acknowledge and agree shall include the terms of the Agreement);

9.1.2. the Licensor has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;

9.1.3. the Licensor will assist you with any subject access request that you receive relating to Personal Data that the Licensor processes on your behalf under the Agreement;

9.1.4. for European customers the Licensor will not, unless you have specified that the Hosted Cloud Location should be outside the EEA, cause or permit Personal Data to be transferred outside the EEA without your prior written consent excluding technical support from Parker Software Inc and any subcontracts in the United States of America required to perform its obligations under the Agreement where they will adhere to the EU-U.S. Privacy Shield Framework.

9.1.5. the Licensor shall ensure that access to the Personal Data that the Licensor processes on your behalf under the Agreement shall be limited to its employees and permitted sub-contractors (you hereby acknowledge and agree that the Hosted Cloud Provider shall act as the Licensor’s subcontractor in order to allow it to perform its obligations under the Agreement) who are subject to binding written confidentiality obligations.

9.2. You and the Licensor shall comply at all times with the Data Protection Legislation and shall not do anything to put the other party in breach of its obligations under the Data Protection Legislation.

9.3. In respect of any actual or reasonably suspected unauthorised access to or acquisition of Your Data or Personal Data that the Licensor processes on your behalf under the terms of the Agreement the Licensor shall promptly notify you and provide you with details of such breach.

9.4. The Licensor shall maintain, in accordance with the Data Protection Legislation, written records of all categories of processing activities carried out on your behalf.

9.5. The Licensor shall, in accordance with the Data Protection Legislation, make available to you such information as is reasonably necessary to demonstrate its compliance with the obligations of Data Processors under the Data Protection Legislation.

10. GENERAL

10.1. The person accepting the terms of the Agreement on your behalf confirms (i) that he/she is authorised to enter into this Agreement on your behalf and to bind you to its terms and (ii) that you are not a consumer.

10.2. You agree that the Licensor shall have the right, after supplying undertakings as to confidentiality, to audit your use of the Application in order to verify compliance with the Agreement.

10.3. If for any reason any of the provisions hereof shall be deemed inoperative unenforceable or invalid, the remaining provisions shall nonetheless remain in full force and effect.

10.4. This Agreement constitutes the entire agreement between you and the Licensor. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of the Licensor which is not set out in this Agreement.

10.5. No failure by the Licensor (i) to insist that you perform any of your obligations under the Agreement, or (ii) to enforce its rights against you, or delay in doing so, shall be construed as a waiver of its rights against you. A waiver of any right is only effective if it is in writing. A waiver of any right shall not prevent the Licensor from enforcing that or any other right against you if you breach such right again on a separate occasion.

10.6. The Licensor shall not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Agreement that is caused by any act or event beyond its reasonable control, including failure of public or private telecommunications networks.

10.7. The Licensor may, at any time, assign or transfer this Agreement or any part of it and/or any rights and obligations arising under it (including the benefit of any guarantee or warranty) to any person, firm or company and you shall if the Licensor requires, enter into a novation agreement with the Licensor and the transferee or such other documentation as is necessary to give effect to any such assignment or transfer. You may only transfer your rights or obligations under this Agreement to another person if the Licensor agrees in writing.

10.8. The terms of this licence shall in all respects be governed by and construed in accordance with English Law and the English courts shall have exclusive jurisdiction.

Parker Software Limited

Registered in England under Company Number 04525820

VAT Number GB797853061

Victoria Business Park

Prospect Way

Knypersley

Stoke-on-Trent

Staffordshire

ST8 7PL

United Kingdom

marketing@parkersoftware.com