Floe Licence Agreement

Clicking “I agree” or otherwise downloading, installing and/or using the Product establishes a binding agreement between you as the person licensing the software, either on behalf of yourself or any third party entity (the “Licensee”) and Arch Consulting Ltd (“Arch”). If you do not accept all of the terms of this agreement, you shall have no right to download, install and/or use the product and must delete the product and associated files immediately. The right to use the product is sold only on the condition that you agree to the following terms and conditions. By installing and/or by using the product, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the terms and conditions set forth herein, and that the product will be used only in accordance with these terms and conditions and with all applicable laws. If an individual is registering or using the product on behalf of an entity or organization, that individual warrants, represents, and covenants to Arch that such individual is duly authorized to agree to these terms and conditions on behalf of the organization and to bind the organization to them. Where applicable, this agreement applies to all products provided by Arch, including any Evaluation Licence.

1 Definitions and Interpretation

1.1 “Documentation” shall refer to the installation and configuration manuals and any supporting content made available in any form by Arch to Licensee in connection with or as a component of Licensee’s use of the Product.

1.2 “Licensee Data” shall refer to any data, information or other material provided to Arch by Licensee or loaded into the Product.

1.3 “Product” shall refer to ‘Floe’ and/or ‘Stelo Tile Builder’, the Software licensed by Licensee, or Arch products listed in an exbibit linked to this agreement.

1.4 “Services” shall refer, individually and collectively, to the system configuration, training, user support and consulting services which may be provided to Licensee by Arch from time to time, subject to the provisions set forth herein.

1.5 “Term” shall refer to the period of time during which this Agreement is in full force and effect.

1.6 The clauses in this Agreement have been given headings in order to make it easy to navigate around the Agreement but the headings are not intended to have any influence on the meaning of the Agreement.

1.7 Any phrase that starts with ‘including’, ‘in particular’, ‘for example’, ‘such as’ or any similar expression is just giving examples and is not a complete list.

1.8 Use of any gender includes the other genders.

1.9 Any reference to persons includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality).

1.10 Any reference to a company includes any body corporate or unincorporate, wherever and however incorporated or established.

1.11 Companies shall be considered to be in a group if one is a subsidiary of the other or both are subsidiaries of a third company (in this Agreement, ‘subsidiary’ has the meaning given in section 1159 of the Companies Act 2006).

1.12 Any reference to a statute, or to a particular section of a statute, is meant to include any modification or re-enactment of that statute or section which is in force from time to time and also any statutory instrument or regulations made under that statute or section. This will not be the case, however, if it would impose on us or on you any new or extended obligation, liability or restriction or adversely affect our rights or yours.

2 Licence Grant

2.1 Internal Use License. Subject to the terms and conditions of this Agreement, including payment of the Subscription Fee, Arch hereby grants to Licensee a limited, non-exclusive, non-transferable licence to access and use the Product, without the right to grant sublicenses, during the Term solely for Licensee’s internal business purposes. Licensee may permit the Licensee’s individual employees, contractors or agents (“Authorized Users”) to access and use the Product on behalf of and for the benefit of the Licensee.

2.2 Documentation. Licensee shall be entitled to

(a) use the Documentation internally solely to support its authorized use of the Product, and

(b) make that number of copies of the Documentation as are reasonably required for it to exercise its rights under clause (a). Any such copies shall include all trademarks or other proprietary legends where and as set forth in the original. Licensee agrees not to provide access to the Documentation to any third party except Authorized Users.

2.3 Licence Restrictions. Licensee will not:

(a) reverse engineer, clone, copy or otherwise attempt to derive source code from the Software;

(b) modify, adapt, create derivative works based upon, or translate the Software;

(d) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Product in any form to any other party, including commercial time-sharing, rental, or service bureau use. Licensee shall not use the Product or the Documentation on behalf of any third party.

2.4 Licensee Compliance with Laws. Licensee acknowledges and agrees that it is Licensee’s obligation to comply with all applicable laws and regulations in its use of the Product and Licensee Data, including those laws and regulations relating to personal data protection and privacy.

2.5 SAP Instances. The Software may only be used on one productive installation of SAP Software unless specified in a signed exhibit. If you have two separate productive installations of SAP software, you must pay the fees relating to each separate installation of the Software on each productive installation. The Software may be used for development and test boxes without the need to pay additional fees.

2.6 Right to Amend. Arch shall be entitled to amend or vary the terms of this Agreement from time to time by the giving of notice to the Licensee. Such notice of a change to terms may be incorporated in the Documentation provided with a new release, version patch or update or may be posted on Arch’s web site at www.arch-global.com. Any notice of change of the terms of this Agreement shall be deemed to be effective and binding on the Licensee:

(a) 21 days from the date of the notice being posted on Arch’s web site; or

(b) the date upon which Arch sends the notice by e-mail or post to the Licensee; or

3 Proprietary Rights

3.1 Arch Software. Licensee acknowledges and agrees that subject to the limited rights expressly granted to Licensee under Section 2, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Product and the Documentation, and in the technology embodied in or reflected by such Product and Documentation, (in each case including any upgrades, modifications, extensions, derivatives, translations, reformulations or developments of the foregoing), are and at all times shall remain the exclusive property of Arch.

3.2 Licensee Data. Arch acknowledges and agrees that Licensee shall own all title to and ownership of the Licensee Data and that Arch shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with the ongoing operation and maintenance of the Product and Arch’s performance of Services.

4 Services

4.1 Product Support. Licensee shall receive maintenance and support services for the Product. This includes access to the support web-site, the ability to report any problems with the Product and access to any bug-fixes or patches made available. It includes upgrades and access to new software versions. The cost of maintenance and support services is included in the Subscription Fee.

4.2 Consulting Services. If Arch is asked to provide any professional services to Licensee, the terms for such professional services shall be mutually agreed upon and specified in a written and signed Statement of Work. The cost of professional services is not included in the Subscription Fee. Travel and living expenses incurred by Arch in connection with maintenance, support, and professional services are not included in the Subscription Fee.

5 Warranty and Disclaimer

5.1 Warranty. Subject to the limitations and exceptions set forth in this Agreement, Arch warrants that for a period of sixty (60) days from the delivery of the Product, that when properly used for the purpose and in the manner authorized by this Agreement, the Product will perform substantially in accordance with the specifications set forth in the Documentation. Licensee’s sole and exclusive remedy and Arch’s sole and exclusive obligation under this warranty shall be, at Arch’s sole discretion,

(a) for Arch to correct any failure of the affected Product to perform as warranted,

(b) for Arch to replace the affected Product with a new copy or update, or

(c) termination of this Agreement and the licenses granted herein, and a refund of that portion of the prepaid Subscription Fee associated with the unused prepaid portion of the then current Subscription Term.

5.2 Risk. Licensee’s use of the product and services is at its own risk. Except for the express warranty stated above, the product is provided “as is” and the Licensee accepts the entire risk as to the quality, performance and results of use of the product. Except as otherwise restricted by law, Arch and its suppliers and distributors disclaim all other warranties, representations, conditions, or guarantees of any kind, either express, implied, statutory, or otherwise, oral or written, with respect to the product and any services furnished in connection with this agreement, including without limitation any implied warranties or conditions:

(a) of merchantability;

(b) of satisfactory or merchantable quality;

(d) of non-infringement; or

(e) arising from course of performance, course of dealing, or usage of trade. Some jurisdictions may not allow the exclusion of implied warranties, so the above exclusion may not apply to the Licensee, and the Licensee may have other legal rights that vary by jurisdiction.

6 Fees and Payment

6.1 Subscription Fee. The Subscription Fee shall be invoiced in annually in advance. Invoices will be stated in British Pounds, Euros or United States Dollars, and shall be due and payable within thirty (30) days following invoice date unless otherwise specified herein or agreed upon in writing by the parties.

6.2 Late Payments. Late payments shall be subject to a service charge of equal to the lesser of 2% per month or the maximum amount allowed by law, with respect to the overdue amount. Arch will supply the licence key for the Product on receipt of payment, and so delays in payment processing may cause a suspension of service.

6.3 No refund. Licence fees are non-refundable except as expressly provided for herein.

6.4 Taxes. All fees are exclusive of all applicable taxes, duties or other governmental assessments. Licensee shall be liable for the payment of all such assessments (other than taxes based on Arch’s income) and shall indemnify and hold harmless Arch with respect to any claims, losses, damages, penalties or other liabilities incurred by Arch as a result of Licensee’s failure to timely pay such assessments.

6.5 Withholding tax. If Licensee is legally required to deduct withholding tax from any payment which is due to Arch, Licensee must use their best efforts to reduce that tax to the lowest level possible. Licensee must promptly provide Arch with evidence of receipt by the relevant tax authority of any sum that has deducted as withholding tax. Arch will notify Licensee if it is unable to recover the full amount of the deduction from the UK tax authorities. In this circumstance, Licensee must make an additional payment to Arch so that the total amount received by Arch is the same as it would have been if no deduction had been made. Any additional payment of this nature must be received by Arch within thirty (30) days of Arch notifying Licensee that it was unable to make a full recovery.

7 Term; Termination

7.1 Subscription Term. The initial subscription period of this Agreement shall commence on the Effective Date, shall continue for the term specified in the order, and shall be renewed for successive one (1) year terms thereafter unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term (each subscription period, a “Subscription Term”).

Thereafter Licensee shall pay the same Subscription Fee on the Renewal Date plus, at Arch’s discretion, an inflation adjustment. The Renewal Date is the anniversary of the earlier of the date on which the Software was delivered or the date on which the original Exhibit was concluded. For the avoidance of doubt all subsequent Subscription fees will be invoiced prior to the Renewal date and Arch must receive payment by the relevant Renewal Date.

Arch will make inflation adjustments when annual invoices are being calculated and issued; it will make them part-way through a year that has already been invoiced. When Arch is making an inflation adjustment, inflation will be measured since the date of the last inflation adjustment. Inflation will be calculated by reference to the Retail Prices Index (All Items) published by the UK Government. If that index ceases to be published, Arch will make a reasonable choice of another index.

7.2 Termination. Either party may terminate this Agreement

(a) upon thirty (30) days prior written notice if the other party has materially breached this Agreement and has not cured the same within the thirty (30) day notice period, or

(b) immediately upon written notice in the event of

the bankruptcy, insolvency, or placing of the assets or the business of the other party in the hands of a receiver or trustee,
the filing of a petition for bankruptcy or reorganization by or against the other party, or
the dissolution or liquidation of the other party.

A termination of this Agreement shall result in the automatic contemporaneous termination of the then current Subscription Term.

7.3 Effect of Termination. Upon any termination of this Agreement,

(a) Licensee shall promptly:

discontinue all use of the Product and Documentation;
erase or destroy any electronic copies or partial copies of the Documentation destroy any tangible copies or partial copies of the Documentation, in its possession or control; and
certify in writing to Arch that Licensee has complied with these requirements;

(b) Arch shall terminate Licensee’s access to any hosted Software; and

Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees that have accrued or are otherwise owed by Licensee for the balance of the then-current term. Any provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive.

7.4 Suspension of Service. The Product will require a licence key to be installed for productive use. Arch will supply the licence key on receipt of invoice payment. The Product will stop functioning properly when the licence key expires.

8 Indemnification

8.1 Indemnification. Arch shall

(a) defend Licensee from and against any third-party claim that the Product infringes a patent, copyright, trademark, or other intellectual property right of such third party, and

(b) pay the resulting cost and damages finally awarded against Licensee by a court of competent jurisdiction or the amount stated in a written settlement signed by Arch.

8.2 Conditions. The foregoing obligations are contingent upon:

(a) Licensee providing Arch with prompt notice of such claim (and in any event notice in sufficient time for Arch to respond without prejudice);

(b) Licensee providing Arch with the exclusive right to control, direct, and perform the investigation, defence, or settlement of such claim;

(d) Licensee must not concede, settle or otherwise prejudice such a claim without Arch’s prior written consent which Arch may give or withhold at its absolute discretion.

8.3 Continued Use. If Licensee’s use of the Product is, or in Arch’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Arch may:

(a) substitute for the infringing element of the Product functionally similar technology;

(b) procure for Licensee the right to continue using the Product; or,

(c) terminate this Agreement and refund to Licensee that portion of the subscription licence fee prepaid for the then-current Subscription Term which reflects the unused prepaid portion of such term. The foregoing defence and indemnification obligations of Arch shall not apply to the extent the alleged infringement arises out of the use or combination of the Product with other non-Arch Product, services, or processes, or any unauthorized use of the Product.

8.4 Exclusions. The indemnity mentioned in clause 8.1 will not be given nor will one of the solutions mentioned in clause 8.3 be provided:

(a) Unless all the conditions set out in clause 8.2 are fulfilled in relation to the relevant claim; or

(b) To the extent that the relevant claim arises as a result of:

any use or possession of the Product which is not authorised by this Agreement; or
any modification of or enhancement to the Product carried out by someone other than Arch; or
the use of the Software or Documentation in combination with anything which was not supplied either by Arch; or
the latest version, release or correction package of the Product that Arch has made available to Licensee not being used.

9 Limitation of Damages

In no event shall Arch be liable to or through Licensee, based on any theory of law, equity, tort, contract or otherwise for special, indirect, incidental, punitive, or consequential damages, including but not limited to, loss of profits, loss of revenue, loss of use, loss of licensee data, or costs of cover, arising out of the performance or non-performance of the product or the provision of services hereunder or otherwise in connection with this agreement, even if Arch was advised of the possibility of such damages and even if the warranty remedy fails in its essential purpose. Arch’s total liability under this agreement for any claims or damages of any kind and based on any theory of law, equity, tort, contract or otherwise, shall not exceed, with all claims aggregated, the total amount of the service and licence fees paid by licensee during the term in which the claim(s) arose. Any claim by licensee shall be brought within 12 months following the event giving rise to the same.

10 Confidentiality

(a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence,

(b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and

(c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder.

The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party:

(a) is or becomes a matter of public knowledge though no action or omission of the receiving party;

(b) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party;

(c) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party;

(d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or

(e) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party.

Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain a copy of the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall

(a) immediately return to the disclosing party or destroy all copies and partial copies of the disclosing party’s Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and

(b) provide the disclosing party with written certification of its compliance with the terms of this section.

Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.

11 General

11.1 Entire Agreement. This Agreement constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in writing and signed by each party’s authorized representatives. No terms in any purchase order or other document delivered by Licensee shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by Arch.

11.2 Invalidity. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect.

11.3 No implied terms. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.

11.4 Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or pre-paid recorded delivery. Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective registered addresses or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 11.

11.5 No Transfer of Rights. Licensee may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Arch. The Licensee may assign this Agreement to an affiliate of Licensee or to a third party to whom Licensee has assigned all or substantially all of its assets or control, or as a result of a sale or merger or consolidation, in each case provided that (i) such assignee has agreed in writing to be bound by the terms herein, (ii) the assignee is not a direct competitor of Arch, (iii) Licensee is current in its payments hereunder, and (iv) Licensee provides notice of such assignment to Arch either prior to or promptly following the effective date of such assignment. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.

11.6 Waiver. A failure to exercise or a delay in exercising any right or remedy provided by this Agreement or by law shall not amount to a waiver of that right or remedy. If any effective waiver is made, however, that waiver shall not amount to a waiver in respect of any other breach. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.

11.7 Events beyond control. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Software), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party:

(a) gives the other party written notice of such cause promptly; and

(b) uses its reasonable efforts to correct such failure or delay.

11.8 Export Restrictions. The Product may not be exported or re-exported.

11.9 Customer Reference. Licensee agrees to make reasonable efforts to act as a customer reference for Arch and shall, upon Arch’s reasonable request, participate in white papers, brochure copy, web content or events, about Licensee’s use of the Product. In addition, Arch shall be entitled to include Licensee on Arch’s published customer lists and web-sites.

11.10 Contractual relationship. The relationship of Arch and Licensee established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.

11.11 Records. During the term of the Agreement and for a period of one (1) year after termination or expiration, the Licensee will maintain complete records regarding the Licensee’s use of the Product. To ensure compliance with the terms of this Agreement, upon request, the Licensee will provide Arch with a report of the Licensee’s use of the Product. The Licensee will allow Arch reasonable access to Licensee’s computer systems, books and records during regular business hours to permit Arch to verify the Licensee’s use of the Product and its compliance with this Agreement. In the event any such audit reveals that the Licensee has underpaid Arch by an amount greater than five percent (5%) of the amounts due Arch in the period being audited, or that the Licensee has knowingly breached any material obligation hereunder, then, in addition to such other remedies as Arch may have, the Licensee will pay or reimburse to Arch the cost of the audit.

11.12 Law and Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the law of England and Wales. Only the courts of England and Wales shall have jurisdiction in relation to any claim or matter arising under or in connection with this Agreement and the legal relationship it has established. The prevailing party in any action to enforce this Agreement will be entitled to recover its legal fees and costs in connection with such action.

1 Definitions and Interpretation

1.2 “Licensee Data” shall refer to any data, information or other material provided to Arch by Licensee or loaded into the Product.

1.3 “Product” shall refer to ‘Floe’ and/or ‘Stelo Tile Builder’, the Software licensed by Licensee.

1.5 “Term” shall refer to the period of time during which this Agreement is in full force and effect.

1.7 Any phrase that starts with ‘including’, ‘in particular’, ‘for example’, ‘such as’ or any similar expression is just giving examples and is not a complete list.

1.8 Use of any gender includes the other genders.

1.10 Any reference to a company includes any body corporate or unincorporate, wherever and however incorporated or established.

2 License Grant

2.1 Internal Use License. Subject to the terms and conditions of this Agreement, including payment of the Subscription Fee, Arch hereby grants to Licensee a limited, nonexclusive, non-transferable license to access and use the Product, without the right to grant sublicenses, during the Term solely for Licensee’s internal business purposes. Licensee may permit the Licensee’s individual employees, contractors or agents (“Authorized Users”) to access and use the Product on behalf of and for the benefit of the Licensee.

2.2 Documentation. Licensee shall be entitled to (a) use the Documentation internally solely to support its authorized use of the Product, and (b) make that number of copies of the Documentation as are reasonably required for it to exercise its rights under clause (a). Any such copies shall include all trademarks or other proprietary legends where and as set forth in the original. Licensee agrees not to provide access to the Documentation to any third party except Authorized Users.

2.3 License Restrictions. Licensee will not: (i) reverse engineer, clone, copy or otherwise attempt to derive source code from the Software; (ii) modify, adapt, create derivative works based upon, or translate the Software; (iii) assign, re-license or sublicense the Product or the use of the Product; or (iv) transfer, lease, loan, resell for profit, distribute or otherwise grant any rights in the Product in any form to any other party, including commercial time-sharing, rental, or service bureau use. Licensee shall not use the Product or the Documentation on behalf of any third party.

2.4 Licensee Compliance with Laws. Licensee acknowledges and agrees that it is Licensee’s obligation to comply with all applicable laws and regulations in its use of the Product and Licensee Data, including those laws and regulations relating to personal data protection and privacy.

2.5 The Software may only be used on one productive installation of SAP Software. If you have two separate productive installations of SAP software, you must pay the fees relating to each separate installation of the Software on each productive installation. The Software may be used for development and test boxes without the need to pay additional fees.

2.6 Arch shall be entitled to amend or vary the terms of this Agreement from time to time by the giving of notice to the Licensee. Such notice of a change to terms may be incorporated in the Documentation provided with a new release, version patch or update or may be posted on Arch’s web site at www.arch-global.com. Any notice of change of the terms of this Agreement shall be deemed to be effective and binding on the Licensee:

(i) 21 days from the date of the notice being posted on Arch’s web site; or

(ii) the date upon which Arch sends the notice by e-mail or post to the Licensee; or

(iii) when a new version update or patch is downloaded or loaded by the Licensee.

3 Proprietary Rights

3.1 Arch Software. Licensee acknowledges and agrees that subject to the limited rights expressly granted to Licensee under Section 2, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Product and the Documentation, and in the technology embodied in or reflected by such Product and Documentation, (in each case including any upgrades, modifications, extensions, derivatives, translations, reformulations or developments of the foregoing), are and at all times shall remain the exclusive property of Arch.

3.2 Licensee Data. Arch acknowledges and agrees that Licensee shall own all title to and ownership of the Licensee Data and that Arch shall have no rights thereto except the limited right to use the same on an ‘as needed’ basis in connection with the ongoing operation and maintenance of the Product and Arch’s performance of Services.

4 Services

4.1 Licensee shall receive maintenance and support services for the Product. This includes access to the support web-site, the ability to report any problems with the Product and access to any bug-fixes or patches made available. It does not include upgrades or access to new software versions. The cost of maintenance and support services is included in the Subscription Fee.

4.2 If Arch is asked to provide any professional services to Licensee, the terms for such professional services shall be mutually agreed upon and specified in a written and signed Statement of Work attached to this Agreement. The cost of professional services is not included in the Subscription Fee. Travel and living expenses incurred by Arch in connection with maintenance, support, and professional services are not included in the Subscription Fee. Licensee shall pay all reasonable travel and living expenses, including transportation, lodging, meals and other direct expenses incurred, which will be billed at actual cost.

5 Warranty; Disclaimer

5.1 Subject to the limitations and exceptions set forth in this Agreement, Arch warrants that for a period of sixty (60) days from the delivery of the Product, that when properly used for the purpose and in the manner authorized by this Agreement, the Product will perform substantially in accordance with the specifications set forth in the Documentation. Licensee’s sole and exclusive remedy and Arch’s sole and exclusive obligation under this warranty shall be, at Arch’s sole discretion, (i) for Arch to correct any failure of the affected Product to perform as warranted, (ii) for Arch to replace the affected Product with a new copy or update, or (iii) termination of this Agreement and the licenses granted herein, and a refund of that portion of the prepaid Subscription Fee associated with the unused prepaid portion of the then current Subscription Term.

5.2 Licensee’s use of the product and services is at its own risk. Except for the express warranty stated above, the product is provided “as is” and the Licensee accepts the entire risk as to the quality, performance and results of use of the product. Except as otherwise restricted by law, Arch and its suppliers and distributors disclaim all other warranties, representations, conditions, or guarantees of any kind, either express, implied, statutory, or otherwise, oral or written, with respect to the product and any services furnished in connection with this agreement, including without limitation any implied warranties or conditions: (a) of merchantability; (b) of satisfactory or merchantable quality; (c) of fitness for a particular purpose; (d) of non-infringement; or (e) arising from course of performance, course of dealing, or usage of trade. Some jurisdictions may not allow the exclusion of implied warranties, so the above exclusion may not apply to the Licensee, and the Licensee may have other legal rights that vary by jurisdiction.

6 Fees and Payment

6.1 Subscription Fee. The Subscription Fee shall be invoiced in annually in advance. Invoices will be stated in British Pounds, Euros or United States dollars, and shall be due and payable within thirty (30) days following invoice date unless otherwise specified herein or agreed upon in writing by the parties.

6.2 Late Payments. Late payments shall be subject to a service charge of equal to the lesser of 2% per month or the maximum amount allowed by law, with respect to the overdue amount. Arch will supply the licence key for the Product on receipt of payment, and so delays in payment processing may cause a suspension of service.

6.3 No refund. License fees are non-refundable except as expressly provided for herein.

6.4 Taxes. All fees are exclusive of all applicable taxes, duties or other governmental assessments. Licensee shall be liable for the payment of all such assessments (other than taxes based on Arch’s income) and shall indemnify and hold harmless Arch with respect to any claims, losses, damages, penalties or other liabilities incurred by Arch as a result of Licensee’s failure to timely pay such assessments.

6.5 Withholding tax. If Licensee is legally required to deduct withholding tax from any payment which is due to Arch, Licensee must use his/her best efforts to reduce that tax to the lowest level possible. Licensee must promptly provide Arch with evidence of receipt by the relevant tax authority of any sum that has deducted as withholding tax. Arch will notify Licensee if it is unable to recover the full amount of the deduction from the UK tax authorities. In this circumstance, Licensee must make an additional payment to Arch so that the total amount received by Arch is the same as it would have been if no deduction had been made. Any additional payment of this nature must be received by Arch within thirty (30) days of Arch notifying Licensee that it was unable to make a full recovery.

7 Term; Termination

7.1 Subscription Term. The initial subscription period of this Agreement shall commence on the Effective Date, shall continue for the term specified in the order, and shall be renewed for successive one (1) year terms thereafter unless either party gives the other party written notice of its intent not to renew the term at least thirty (30) days prior to the expiration of the then-current term (each subscription period, a “Subscription Term”). Arch reserves the right to increase the Subscription Fee by no more than 6% for each renewal term, provided notice of any such increase is provided to Licensee no later than forty-five (45) days prior to the expiration of the then-current term.

7.2 Termination. Either party may terminate this Agreement (a) upon thirty (30) days prior written notice if the other party has materially breached this Agreement and has not cured the same within the thirty (30) day notice period, or (b) immediately upon written notice in the event of (i) the bankruptcy, insolvency, or placing of the assets or the business of the other party in the hands of a receiver or trustee, (ii) the filing of a petition for bankruptcy or reorganization by or against the other party, or (iii) the dissolution or liquidation of the other party. A termination of this Agreement shall result in the automatic contemporaneous termination of the then current Subscription Term.

7.3 Effect of Termination. Upon any termination of this Agreement, (a) Licensee shall promptly: (i) discontinue all use of the Product and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation destroy any tangible copies or partial copies of the Documentation, in its possession or control; and (iii) certify in writing to Arch that Licensee has complied with these requirements; (b) Arch shall terminate Licensee’s access to any hosted Software; and (c) both parties shall promptly return to the other or destroy the other party’s Confidential Information. Termination of this Agreement will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Licensee’s obligation to pay all fees that have accrued or are otherwise owed by Licensee for the balance of the then-current term. Any provisions providing for limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive.

7.4 Suspension of Service. The Product will require a licence key to be installed for productive use. Arch will supply the licence key on receipt of invoice payment. The Product will stop functioning properly when the licence key expires.

8 Indemnification

8.1 Indemnification. Arch shall (a) defend Licensee from and against any third party claim that the Product infringes a patent, copyright, trademark, or other intellectual property right of such third party, and (b) pay the resulting cost and damages finally awarded against Licensee by a court of competent jurisdiction or the amount stated in a written settlement signed by Arch.

8.2 Conditions. The foregoing obligations are contingent upon:

Licensee providing Arch with prompt notice of such claim (and in any event notice in sufficient time for Arch to respond without prejudice);
Licensee providing Arch with the exclusive right to control, direct, and perform the investigation, defence, or settlement of such claim;
Licensee providing Arch with such assistance as may be reasonably requested by Arch at Arch’s expense.
Licensee must not concede, settle or otherwise prejudice such a claim without Arch’s prior written consent which Arch may give or withhold at its absolute discretion.

8.3 Continued Use. If Licensee’s use of the Product is, or in Arch’s opinion is likely to be, enjoined, or if required by settlement, or if commercially advisable, Arch may: (x) substitute for the infringing element of the Product functionally similar technology; (y) procure for Licensee the right to continue using the Product; or, (z) terminate this Agreement and refund to Licensee that portion of the subscription license fee prepaid for the then-current Subscription Term which reflects the unused prepaid portion of such term. The foregoing defence and indemnification obligations of Arch shall not apply to the extent the alleged infringement arises out of the use or combination of the Product with other non-Arch Product, services, or processes, or any unauthorized use of the Product.

8.4 Exclusions. The indemnity mentioned in clause 8.1 will not be given nor will one of the solutions mentioned in clause 8.3 be provided:

(i) Unless all the conditions set out in clause 8.2 are fulfilled in relation to the relevant claim; or

(ii) To the extent that the relevant claim arises as a result of:

any use or possession of the Product which is not authorised by this Agreement; or
any modification of or enhancement to the Product carried out by someone other than Arch; or
the use of the Software or Documentation in combination with anything which was not supplied either by Arch; or
the latest version, release or correction package of the Product that Arch has made available to Licensee not being used.

9 Limitation of Damages

In no event shall arch be liable to or through Licensee, based on any theory of law, equity, tort, contract or otherwise for special, indirect, incidental, punitive, or consequential damages, including but not limited to, loss of profits, loss of revenue, loss of use, loss of licensee data, or costs of cover, arising out of the performance or non-performance of the product or the provision of services hereunder or otherwise in connection with this agreement, even if Arch was advised of the possibility of such damages and even if the warranty remedy fails in its essential purpose. Arch’s total liability under this agreement for any claims or damages of any kind and based on any theory of law, equity, tort, contract or otherwise, shall not exceed, with all claims aggregated, the total amount of the service and license fees paid by licensee during the term in which the claim(s) arose. Any claim by licensee shall be brought within 12 months following the event giving rise to the same.

10 Confidentiality

Each party acknowledges that by reason of the relationship created between the parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt the terms of this Agreement, and any performance, warranty and like information relating to the Product (by whomsoever generated or communicated) will be considered the Confidential Information of Arch. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing party, and (c) not to use the Confidential Information of the other party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing party that, as can be reasonably demonstrated with admissible evidence by the receiving party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving party; (ii) was rightfully in the receiving party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing party; (iii) is rightfully obtained by the receiving party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing party; (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing party. Upon the written request of the disclosing party (subject to each party’s rights, during the Term, to retain a copy of the other’s Confidential Information solely for purposes of performing its obligations and exercising its rights hereunder) or upon any termination of this Agreement, the receiving party shall (a) immediately return to the disclosing party or destroy all copies and partial copies of the disclosing party’s Confidential Information, whether maintained in tangible, electronic or other form (including permanently erasing any portions thereof from computers and systems) and (b) provide the disclosing party with written certification of its compliance with the terms of this section. Each party acknowledges that any breach of any of its obligations with respect to the other party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.

11 General

11.1 Entire Agreement. This Agreement constitutes the entire understanding between the parties, and supersedes all prior discussions, representations, understandings, or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms and with respect to information disclosed under that agreement), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any modification or amendment to this Agreement must be in writing and signed by each party’s authorized representatives. No terms in any purchase order or other document delivered by Licensee shall be deemed to amend the terms of this Agreement and any such additional or inconsistent terms shall be deemed unacceptable to and rejected by Arch.

11.2 Invalidity. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be unenforceable, the remaining provisions shall remain in full force and effect and, to the extent allowed and practicable, the unenforceable provision shall be modified so as to be enforceable consistent with its original intent and economic effect.

11.3 No implied terms. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement. The word “including” shall be construed non-exclusively, to mean “including but not limited to.” The word “or” shall be construed inclusively, to mean that one or more of the options may occur. This Agreement and any amendment hereto may be executed in counterparts, each of which shall be deemed an original and both of which together shall constitute one instrument.

11.4 Notices. All notices required or permitted under this Agreement shall be in writing and shall be sent by hand, overnight courier or pre-paid recorded delivery. Notices shall be deemed delivered on the date of delivery, if delivery occurs within normal business hours or on the next business day if delivery occurs outside of normal business hours. All communications will be sent to the respective registered addresses or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 11.

11.5 No Transfer of Rights. Licensee may not assign this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of Arch. The Licensee may assign this Agreement to an affiliate of Licensee or to a third party to whom Licensee has assigned all or substantially all of its assets or control, or as a result of a sale or merger or consolidation, in each case provided that (i) such assignee has agreed in writing to be bound by the terms herein, (ii) the assignee is not a direct competitor of Arch, (iii) Licensee is current in its payments hereunder, and (iv) Licensee provides notice of such assignment to Arch either prior to or promptly following the effective date of such assignment. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors and assignees.

11.6 Waiver. A failure to exercise or a delay in exercising any right or remedy provided by this Agreement or by law shall not amount to a waiver of that right or remedy. If any effective waiver is made, however, that waiver shall not amount to a waiver in respect of any other breach. A waiver shall only be deemed to have been made if expressed in writing by the party granting such waiver and shall not be construed as a waiver of future performance of any such term.

11.7 Events beyond control. Neither party will be liable for any failure or delay in its performance under this Agreement (or the performance of or access to the Software), other than payment obligations, due to causes that are beyond its reasonable control, including, but not limited to, an act of God, act of civil or military authority, fire, epidemic, flood, earthquake, riot, war, terrorism, sabotage, and governmental action; provided that the delayed party: (i) gives the other party written notice of such cause promptly; and (ii) uses its reasonable efforts to correct such failure or delay.

11.8 Export Restrictions. The Product may not be exported or re-exported.

11.9 Customer Reference. Licensee agrees to make reasonable efforts to act as a customer reference for Arch and shall, upon Arch’s reasonable request, participate in white papers, brochure copy, web content or events, about Licensee’s use of the Product. In addition, Arch shall be entitled to include Licensee on Arch’s published customer lists.

11.10 Contractual relationship. The relationship of Arch and Licensee established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking.

11.11 Records. During the term of the Agreement and for a period of one (1) year after termination or expiration, the Licensee will maintain complete records regarding the Licensee’s use of the Product. To ensure compliance with the terms of this Agreement, upon request, the Licensee will provide Arch with a report of the Licensee’s use of the Product. The Licensee will allow Arch reasonable access to Licensee’s computer systems, books and records during regular business hours to permit Arch to verify the Licensee’s use of the Product and its compliance with this Agreement. In the event any such audit reveals that the Licensee has underpaid Arch by an amount greater than five percent (5%) of the amounts due Arch in the period being audited, or that the Licensee has knowingly breached any material obligation hereunder, then, in addition to such other remedies as Arch may have, the Licensee will pay or reimburse to Arch the cost of the audit.

11.12 Law and Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the law of England and Wales. Only the courts of England and Wales shall have jurisdiction in relation to any claim or matter arising under or in connection with this Agreement and the legal relationship it has established. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.