In this Agreement (including all parts or attachments hereto, (collectively the “Parts”)), unless the context otherwise requires:
“Affiliates” means any legal entity that now or in the future, directly or indirectly controls, is controlled with or by or is under common control with a Party.”
“Business Day” means any day (excluding a Saturday, Sunday, or legal holiday) on which banks are open to the public for business in the the USA
“Commencement Date” means date of operational UCA Solution delivery ;
“Customer Data” means any data provided by the Customer (including End-Customer data) for use by the UCA system for reports/reporting purposes;
“Data Sources” means Customer systems that provide Customer Data for use by the UCA system in order to satisfy the requirements of the system description;
“Documentation” means the standard user documentation for the Software;
“Force Majeure” means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, Act of God, pandemic or epidemic, war, explosions, fires, floods, tempests, earthquake, insurrection, riot, civil, disturbance, rebellion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, any failure of any utility service, telecommunications system, the internet, power outage, strike, lockout or other form of industrial action (excluding in relation to strike, lockout or other form of industrial action in relation to Soft-ex’s own staff));
“Initial Term” means a period of two (2) years beginning with the Commencement Date
“Intellectual Property Rights” means any copyrights, patents, patentable material, designs, trade secrets, confidential information, know-how, trademarks, service marks or other industrial or intellectual property rights, and any applications for any of the foregoing
(whether registered or not and whether registrable or not);
“Materials” means any material which Intellectual Property Rights of whatever nature subsist, including literary works or other works of authorship such as programs (including software and source code), programme listings, programming tools, methodology, user manuals, specifications, patents, plans, uncommon reports, drawings, inventions, copyright works, Confidential information and other written and machine readable text and files.
“PII” means an End-Customer’s customers' subscribers' or other individuals’ names, addresses, email addresses, telephone numbers, government issued identifiers, financial and payment and related identifiers, and marketing information related to products or services offered by or in conjunction with services and/or products as well as all other personally identifiable information relating to such subscribers or other individuals;
“Reports/Reporting” means the reports/reporting included in a Statement of Work; “Restricted Information” means any information which is disclosed by either party to the other or for which either party becomes aware pursuant to or in connection with this Agreement (whether orally or in writing, and whether or not such information is expressly stated to be confidential or marked as such), including, without limitation, Customer Data, PII and Usage Data;
“Software” means the computer programmes and associated services described in a Statement of Work; “Updates” means any enhanced or incremental version of the Software made available by Soft-ex generally to its customers.
“UCA” Unified Comms Analytics
“Usage Data” means any and all data relating to account activity and Customer's customers’ subscribers’ or other individuals’ usage of products and services or other information collected from or about or otherwise regarding the Customer's customers' subscribers or other individuals, whether in individual or aggregate form
1.1 These General Terms and Conditions including the details overleaf and the Parts set out and/or referred to form an integral part of this Agreement, and reference to this Agreement includes references to them.
2.1. Soft-ex grants to the Customer a single, limited, non-transferable and non-exclusive global licence to access and use the Software (via an internet connection) hosted on a Cloud based secure platform provided by Soft-ex for the sole purposes of reporting on the Customer Data supplied to Soft-ex and as otherwise set forth in the solution description.
2.2. The Customer acknowledges that it has no right to use, copy, change or otherwise deal with the Software or to permit third parties to do so save as expressly for End-Customers or as otherwise set out in this Agreement. The Customer is responsible for obtaining all other licences necessary for it to access the Software by way of the Internet.
2.3. The Customer hereby acknowledges that, subject to and in accordance with the terms of this Agreement, it will be liable to Soft-ex for any unauthorised use of the Software by the Customer resulting from (i) a Customer’s breach of this Agreement or (ii) any other negligent or wrongful act of the Customer, its officers, employees, servants, agents, sub-contractors or sub-licensees.
3.1. Soft-ex will provide the Reports/Reporting information to the Customer in the form and frequencies set out in the solution description.
3.2. For the avoidance of doubt, the Customer will be responsible for the correct functioning of their Data Sources and associated management system and the provision of Customer Data from each of its sites to Soft-ex, in a form and frequency mutually agreed by the parties.
4.1. Every month during the term of this Agreement, the Customer will pay to Soft-ex the monthly charges, as set out in the PartnerStack Agreement (the “Charges”). Customer shall provide to Soft-ex a valid Purchase Order to cover 12 monthly Charges, to which the Charges apply. By the 20th day of each month, Soft-ex will provide to Customer an invoice containing the calculation of the previous month’s monthly Charges. Provided that Customer receives invoices on or before the 20th each month, all Charges due under this Agreement shall be received within 30 days of the date of the relevant invoice. All sums payable under this Agreement are exclusive of VAT and any other sales or similar taxes, customs duties or similar charges, for which the Customer is legally responsible. Soft-ex reserves the right to charge, and the Customer agrees to pay, interest on such sum on a day to day basis at the annual rate of Fed Fund Rate (FFR) + 2% from the date when payment became due until the date on which payment has been received together with any interest which has accrued.
4.2. The Charges as set out in the PartnerStack Agreement are fixed for the Initial Term (as defined in 11.1 below). Charges may be reviewed after the Initial Term and amended by agreement of the parties.
5.1. Soft-ex will provide Service Levels as described in the Customer SLA and certain support services (“Support Services”) to Customer on the terms and conditions of this Agreement.
5.2. The Customer undertakes to:
5.2.1. ensure that the Software is used in a proper manner consistent with the Software Documentation;
5.2.2. if applicable, make available to Soft-ex free of charge all information, facilities and services reasonably required by Soft-ex to perform the Support Services, and
5.2.3. report all issues or faults to Soft-ex within a commercially reasonable period of time upon becoming aware of the issues or faults;
5.3.Soft-ex will only provide Support Services in respect of Soft-ex supplied hardware and software as specified in this Agreement and operated within the terms of this Agreement
5.4. Any additional support required by Customer outside of the terms of this Agreement will be subject to the prior written agreement of Soft-ex and subject to such additional charges as the parties may mutually agree.
5.5. In addition and without prejudice to the foregoing, Soft-ex will not be responsible to the Customer or to any third party in respect of any of the following which the Customer agrees are its sole responsibility (i) transmission of data from the Customer’s Data Sources to Soft-ex’s Software (ii) the servers, hardware and other software not provided by or on behalf of Soft-ex; and (iii) the timely provision of information relating to updates to data required to maintain, configure or use the Software.
6.1. Subject to agreement as to scheduling, Soft-ex shall provide training to the Customer in the use of the Software for up to one half a day at no additional cost to the Customer. The Customer must make its employees available for training.
7.1. Soft-ex warrants that:
7.1.1. it has the right to grant Customer a licence to access and use the Software as provided in this Agreement;
7.1.2. the Software will perform in accordance with the Documentation for the duration of this Agreement
7.1.3. any Support Services provided under this Agreement will be performed in accordance with the Service Level Agreement as set forth in the Customer SLA and to the highest standards applicable to a professional provider of such services.
7.2. Soft-ex will indemnify, defend, hold harmless and keep indemnified the Customer against any and all actions, claims, proceedings, damages, costs, liabilities and expenses (including reasonable legal fees and expenses) arising out of, from or related to, any claim by a third party that the Software or any other Soft-ex products or services provided to Customer pursuant to this Agreement or any SOW, infringes or misappropriates the Intellectual Property Rights of a third party. Soft-ex shall have sole control of the defence and settlement of any indemnification claim made pursuant to this Agreement; provided, however, that Customer, as applicable, may monitor the defence of the claim with counsel of its own choosing. Soft-ex shall not propose a judgment or agree to a settlement that attributes fault or liability to, or requires an action or admission by, Customer without the prior written consent of Customer. Customer shall reasonably cooperate with Soft-ex in the defence of all indemnification claims.
7.3. The Customer acknowledges that it has assessed for itself the suitability of the Software for its requirements. Soft-ex does not warrant that the Software and/or the Documentation will be suitable for such requirements
7.4. The Customer's sole remedy for breach of any of the warranties in clause 7.1 is to require Soft-ex to repair or replace (at Soft-ex's option) the defective item or repeat the performance of the relevant services within seven Business Days of notification of the breach or fault to Soft-ex (or such shorter period of time as may be set out in a Statement of Work) at no charge to the Customer, subject to the customer’s compliance with clause 5.2
7.5. If Soft-ex is unable to cure such breach notified to it pursuant to clause 7.4 within seven business days (or such period of time as may be set out in a Statement of Work), Customer may terminate this Agreement forthwith by notice in writing to Soft-ex and, without prejudice to any other claims that the Customer may have in respect of such breach, Soft-ex shall reimburse the Charges already paid by the Customer for the period commencing when use of the Software and/or the Reports by the Customer was inhibited.
The warranties in clause 7.1 will not apply to the extent that a breach of such warranties is caused by (i) a failure or delay in the provision of Customer Data, or the material agreed to be provided to Soft-ex by the Customer or its sub-contractor; (ii) the Software being used in combination with any software or materials not supplied by Soft-ex or approved in writing by Soft-ex and the combination is the sole cause of the breach; (iii) the Software being used in an application for which it was not intended and such use is the sole cause of the breach; (iv) a failure of the Customer to provide the facilities on which to operate the Software; or (v) the Software being used other than as permitted under this Agreement.
7.6. Except as expressly stated above, all other warranties, conditions, terms, undertakings and representations, expressed or implied, statutory or otherwise, are hereby excluded to the fullest extent permitted by law. The contractual rights based on legislation on Article 2 of the Uniform Commercial Code (UCC) and the American Law Institute's Restatement (Second) of the Law of Contracts no way prejudiced by anything contained in this Agreement save to the fullest extent permitted by law.
7.7. Soft-ex will in the performance of its obligations pursuant to this Agreement comply with relevant Customer and End-Customer policies as are notified to Soft-ex from time to time and which are mutually agreed.
8.1. Except in relation to any liability arising under clause 7.2 or 10 or Soft-ex’s failure to comply with the law, each party’s aggregate liability arising out of or related to this agreement, whether for breach of contract, warranty or undertaking or under any indemnity, in tort, for negligence or otherwise is limited to one times the charges paid to Soft-ex during the twelve (12) months preceding the initial claim.
8.2. Notwithstanding clause 8.1 above, Soft-ex’s liability in relation to the Intellectual Property Rights indemnity at clause 7.2 shall be limited to US$2,500,000 (Two point Five million USD) per claim.
8.3. Notwithstanding any other item of this Agreement, under no circumstances will either party, its employees, servants or agents be liable to the other party or any third party for any consequential damages including, without limitation, loss of profit or loss of revenue, resulting from any claim (including, without limitation a claim for breach of contract, in tort, for negligence, for breach of warranty or otherwise) under this Agreement.
8.4. The parties acknowledge and agree that the sums payable under this Agreement have been determined on the basis of the limits of liability set out in this clause 8.
8.5. Soft-ex will, for the duration of this Agreement and for six years after its expiry or termination maintain the following insurance with a reputable insurer:
8.5.1. Employer’s Liability Insurance with a limit of indemnity of US$2.5m;
8.5.2. Public/products liability with a limit of indemnity of US$2.5m; and
8.5.3. Professional Indemnity insurance with a limit of indemnity of US$2.5m
9.1. The Customer irrevocably acknowledges that any and all Intellectual Property Rights and other proprietary rights which subsist in or arise in connection with the Software and/or the Documentation (including, without limitation, all modifications, enhancements, translations, updates, adaptations, derivative works or any changes to either or both of them, anywhere in the world belong to or, as appropriate, will vest from the moment of their invention in Soft-ex (or its licensors) and that the Customer will have no right in or to the Software or the Documentation save the right to use it as permitted by this Agreement. The Customer hereby assigns (by way of future assignment or if this is not possible, it agrees to assign such rights upon or after their creation at the request of Soft-ex) all Intellectual Property Rights and all other proprietary rights that it has or acquired (if any) in respect of the New Developments to Soft-ex.
9.2. All Intellectual Property Rights in the Report templates will be owned by Soft-ex. All Intellectual Property Rights in the Customer and/or End-Customer data will at all times be owned by the Customer or End-Customer (as appropriate) whether or not such data is contained in a Report. Notwithstanding the foregoing, the Customer and/or End-Customer shall be entitled to use and modify downloaded Reports containing its data.
10.1. Each of the parties may have access to Restricted Information in connection with this Agreement, which shall include any PII or Usage Data. Each party shall at all times during the continuance of this Agreement and after its termination safeguard and keep all Restricted Information confidential, including (i) those measures required under this clause 10, (ii) those measures taken by such party to protect its own Restricted Information, and (iii) those measures which the other party may reasonably request from time to time.
10.2. PII Obligations. Soft-ex hereby acknowledges that Customer has a responsibility under its customer contracts and the law to keep PII private and confidential, and as a result of any PII received by Soft-ex in the performance of Services under this Agreement, Soft-ex shall have the same responsibility. Soft-ex also acknowledges that the PII to which it will have access pursuant to this Agreement (if any), for the purpose of this Agreement constitutes Customer’s Restricted Information and that Soft-ex in no way possesses or shall gain possession of any ownership or other proprietary rights with respect to such PII.
Usage Data. Restricted Information shall additionally include any Usage Data. Such Usage Data is and shall remain the property of Company and/or its customers. To the extent that Soft-ex has access to or collects such Usage Data, it does so solely on behalf of Company and its customers pursuant to Soft-ex’s obligations hereunder and shall maintain the confidentiality of such data and shall treat it in accordance with the requirements provided in this clause 10 and applicable law. Soft-ex shall not use Usage Data for any purpose not in compliance with its obligations under this Agreement and shall not disclose such data, whether in aggregate or individual form, to any third party. Soft-ex shall not collect or maintain such Usage Data except to the extent necessary to perform its obligations under this Agreement.
10.4. Security. All PII and Usage Data that is collected, stored or otherwise maintained by Soft-ex pursuant to this Agreement shall be maintained in a secure environment that meets the then current industry standards including administrative, technical, and physical safeguards and controls sufficient to: (i) ensure the security and confidentiality of PII and Usage Data; (ii) protect against anticipated threats or hazards to the security or integrity of such information; (iii) protect against unauthorized access to, acquisition, or disclosure or use of such information; and (iv) dispose of such information in a secure (rendered unrecoverable) manner. Any PII or Usage Data that is collected or obtained by Soft-ex must be stored and transmitted in a commercially encrypted (at least 128 bit or higher) or otherwise secure form. In the event of a breach of security of any system, website, database, equipment or storage medium or facility that results in unauthorized access to PII or Usage Data by any third party (including any employee or subcontractor of Soft-ex that is not authorized to access such information), Soft-ex shall notify Customer promptly, and in no event more than twenty-four (24) hours, after taking any immediate measures necessary to prevent further access and make best efforts to re-secure its systems as soon as possible. In addition, in the event of a security breach, Soft-ex agrees to provide Customer with commercially reasonable details to understand the root cause and as necessary Customer may provide same, including Soft-ex’s name, to End-Customer, which in no event shall be considered a violation of the terms of confidentiality provided in this Agreement.
10.5. Use and Disclosure. Each party will use the other party’s Restricted Information solely to fulfill the purposes of this Agreement. Neither party will disclose, in whole or in part, the other party’s Restricted Information to any person, except to such party’s employees or agents who require access to fulfill the purposes of this Agreement. Upon the termination, cancellation, or expiration of the Agreement for any reason, or upon the request of either party, all Restricted Information including any PII and Usage Data, shall be returned to the supplying party or securely destroyed (rendered unrecoverable) in a commercially reasonable manner.
10.6. Unauthorized Use or Disclosure. Each party acknowledges that any unauthorized use or disclosure of the Restricted Information may cause irreparable damage to the other party. If an unauthorized use or disclosure occurs, such party will take, at its expense, all steps which are necessary to recover the other party’s Restricted Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party’s expense. Soft-ex shall provide any information that Customer reasonably requests pertaining to the incident and shall cooperate fully with Customer to investigate any such unauthorized use or disclosure.
10.7. Limitation. Neither party will have any confidentiality obligation with respect to any portion of the other party’s Restricted Information that (i) it independently knew or develops, (ii) it lawfully obtains from a third party under no obligation of confidentiality, or (iii) becomes available to the public other than as a result of its act or omission. Notwithstanding the foregoing, a party will at all times remain liable for any breach of the provisions of this clause 10 by any third party to whom it discloses Restricted Information up to a maximum of US$2,000,000 (Two million US dollars).
11.1. Without prejudice to either party’s right to terminate the Agreement as provided for in this Agreement, this Agreement and the licences granted hereunder will last for an initial term (the “Initial Term”) of two (2) years from the Commencement Date. After the Initial Term this Agreement will continue unless terminated by either party as provided for in this Agreement.
11.2. Either party may terminate this Agreement with effect from and at any time after the Initial Term, with or without cause, subject to the giving of at least three (3) months’ prior written notice to the other party.
11.3. Without prejudice to either party’s right to terminate the Agreement as provided for in this Agreement, if the Customer terminates this Agreement at any time before the end of the Initial Term, then the Customer must give at least 30 days prior written notice to Soft-ex, and notwithstanding such termination the Customer shall pay to Soft-ex:
11.3.1 all arrears of charges payable under this Agreement up to the date of termination; and
11.3.2 by way of liquidated damages, a sum equal to 25% of the remaining value of the contract outstanding from the date of termination to the end of the Initial Term.
11.4. Notwithstanding the foregoing, Soft-ex will be entitled to terminate this Agreement and the licence contained therein forthwith by written notice to the Customer if:
11.4.1. the Customer challenges the Intellectual Property Rights of Soft-ex; or
11.4.2 the Customer is more than 30 days late in discharging any sum due to Soft-ex.
11.5 Either party is entitled to terminate this Agreement forthwith if without prejudice to Clause 11.4.2, the other party commits any breach of the provisions of this Agreement and, in the case of a breach capable of remedy, fails to remedy it within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied.
The rights to terminate this Agreement given by this clause 11 will be without prejudice to any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
11.6 Termination of this Agreement (howsoever occasioned) will not affect the provisions of clauses 7, 8, 9, 10, 11.6, 12 and 13.8 which will survive termination, and any accrued rights or liabilities of the parties, nor will it affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into force or continue in force on or after such termination.
13.1. Force Majeure: if either party is affected by Force Majeure, it must forthwith notify the other party of the nature and extent thereof. Neither party will be deemed to be in breach of this Agreement, or otherwise be liable to the other by reason of any delay in performance, or non-performance, of any of its obligations to the extent that the delay or non-performance is due to any Force Majeure of which it has notified the other party, and the time for performance of that obligation will be extended accordingly. If the Force Majeure in question prevails for a continuous period in excess of 45 days, the parties will enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
13.2. Whole Agreement: this Agreement (including the documents and instruments referred to in it) supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject-matter of this Agreement (including, without limitation, any Letter of Intent), and sets forth the entire, complete and exclusive agreement and understanding between the parties relating to the subject-matter. No party has relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out or referred to in this Agreement.
13.3. Severability: all the terms and provisions of this Agreement are distinct and severable, and if any term or provision is held unenforceable, illegal or void in whole or in part by any court, regulatory authority or other competent authority, it will to that extent be deemed not to form part of this Agreement, and the enforceability, legality and validity of the remainder of this Agreement will not be affected, but in any case where as a result of the operation of this clause the rights or obligations of a party are materially altered to the detriment of that party, that party may terminate this Agreement within 30 days from the date of the relevant decision of the relevant court, regulatory authority or other competent authority.
13.4. Forbearance and Waiver: no waiver by a party in respect of any breach will operate as a waiver in respect of any subsequent breach. No failure or delay by a party in exercising any right or remedy will operate as a waiver of it, nor will any single or partial exercise or waiver of any right or remedy prejudice its further exercise or the exercise of any other right or remedy.
13.5. Assignment: The parties shall not assign or transfer the Agreement or the benefits or obligations thereof, or any part thereof to any other person without the prior written consent of the other party. Consent should not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Customer shall be entitled to assign or novate this Agreement to an End Customer. In the event Soft-ex assigns this Agreement to a competitor of Customer, Soft-ex shall cause such competitor to agree in writing to continue performance of this Agreement for at least as long as any customer agreements Customer has in place at the time of such assignment, and for any of Customer’s customer agreements which are the product of active negotiation during the period extending 12 months from the date of assignment, for so long as such agreements remain in place; .
13.6. Sub-contracting: Soft-ex shall not sub-contract any of its obligations under or in connection with this Agreement to a third party without the prior written consent of the Customer.
13.7. Dispute Resolution and Choice of Law: it is irrevocably agreed that the English courts are to have exclusive jurisdiction to settle any such disputes which may arise out of or in connection in any way with this Agreement or its performance. This Agreement and all relationships created by it will in all respects be governed by and construed in accordance with English l
September '22