ARTIFAX SOFTWARE LIMITED

Terms and Conditions for Artifax Event and Artifax Agora (Browser Delivered)

1. Interpretation

1.1. The definitions and rules of interpretation in this clause apply in this Contract.

Artifax: Artifax Software Limited (Company Number 2007321) whose registered office is at 17A West Street, Epsom, Surrey KT18 7RL.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Commencement Date: the date set out in Part 1 of the Order Specification.

Confidential Information: information that is proprietary or confidential or identified as Confidential Information in clause 12.

Configuration Services: the configuration and related work referred to in Part 3 of the

Order Specification, to be performed by Artifax.

Contract: the contract between Artifax and the Customer for the licensing of the Software and the supply of the Services, comprising the Order Specification and these Terms and Conditions.

Contract Term: if the Customer purchases a subscription Software Licence the 36-month period from the Installation Date, and if the Customer purchases a perpetual Software Licence the period from the Installation Date until termination of the Contract.

Customer: the customer identified on the Order Specification.

Customer Contact(s): the individual(s) appointed by the Customer from time to time who shall serve as Artifax’s primary contact(s) for Artifax’s activities under this Contract.

Customer Data: the data inputted into the information fields of the Software by the Customer, by Licensed Users, or by Artifax on the Customer’s behalf.

Customer Server: the customer’s server used to host the Software and meeting the minimum specification as directed from Artifax from time to time.

Customer Web Browser: the customer’s web browser used to access the Software and meeting the minimum specification as directed from Artifax from time to time.

Deliverable: a defined level of functionality or other preset milestone within a particular phase of the Configuration Services, to be more particularly described in the Order Specification.

Fees: the fees and charges payable to Artifax, as described in Part 2 of the Order Specification.

Fixed Licensed Users: means a fixed number of named Licensed Users as set out in clause 5.4.

Floating Licensed Users: means the total number of unnamed Licensed Users that the Customer may have using the Software at any given time as further described in clause 5.4.

Hosting Services: the services that Artifax provides to allow Licensed Users to access and use the Software.

Installation Date: the date that the Software is installed in the hosting environment as set out in Part 1 of the Order Specification.

Licensed Users: those employees and independent contractors of the Customer who are entitled to use the Software through the Hosting Services under this Contract, as further described in clause 5.4.

Maintenance and Support: any error corrections, updates and upgrades that Artifax may provide or perform with respect to the Software and Hosting Services. Maintenance and Support does not include training, which is available upon request subject to a separate charge. If the Software is installed on a Customer Server then Artifax will provide any error corrections, updates and upgrades for installation by the Customer.

Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
Order Specification: the order form setting out details of the Software licence and the Services.

Service Level Arrangements: the service level arrangements set out in Appendix 1.

Services: The Configuration Services, Hosting Services and/or Maintenance and Support as applicable, given the context in which the term Services is used.

Software: Artifax’s proprietary software in machine-readable object code form only known as “Artifax Event” and “Artifax Agora” and their plug-ins and modules described on Artifax’s website at www.artifax.net, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Contract, and as accessed by the Customer through its internet browser as directed by Artifax from time to time.

Software Licence: the license granted by Artifax to the Customer for the use of Software in accordance with the provisions of clause 3.

Software Specification: the functionality and performance specifications for the Software, as described on Artifax’s website at www.artifax.net.

Standard Usage Patterns: the average usage by the Customer over the previous three months of use of the Services.

Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

1.2 A reference to writing or written includes faxes and e-mail.

2. Basis of Contract

2.1 The Order Specification constitutes an offer by the Customer for the licensing of the Software and the supply of the Services in accordance with these Terms and Conditions.

2.2 The Order Specification shall only be deemed to be accepted when Artifax issues written acceptance of the Order Specification at which point and on which date the Contract shall come into existence.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Artifax which is not set out in the Contract.

2.4 Any drawings, descriptive matter or advertising issued by Artifax and any descriptions of the Services or illustrations or descriptions of the Services contained in Artifax’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by Artifax shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue.

2.7 If there is an inconsistency between any of the provisions in these Terms and Conditions and the Order Specification, the provisions in the Order Specification shall prevail.

3. Software Licence

3.1 In consideration of the Fees paid and payable in the future by the Customer to Artifax, Artifax grants to the Customer a non-exclusive licence to use the Software for its own internal business purposes only in accordance with the provisions of this Contract, for the following periods:
(a) If the Customer purchases a perpetual Software Licence the licence period shall be perpetual but subject to automatic termination upon termination of the Contract for any reason; and
(b) If the Customer purchases a subscription Software Licence the licence period shall be initially for 36 months from the Installation Date, subject to renewal thereafter upon each anniversary of the Installation Date.

3.2 It is a condition of either Software Licence (perpetual or subscription) that at all times the Customer pays the annual Fee for Maintenance and Support. For Customers purchasing a subscription Software Licence such Fee is included in the subscription. Failure to pay such Fee will entitle Artifax to terminate the Contract and the Software Licence.

3.3 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this Contract,
without the prior written consent of Artifax, such consent not to be unreasonably withheld or delayed.

3.4 Artifax may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Contract provided it gives written notice to the Customer.

4. Configuration Services

4.1 Artifax shall perform the Configuration Services in accordance with the timetable set out in the Order Specification. Artifax shall use reasonable endeavours to meet the performance dates set out in Order Specification, but any such dates shall be estimates only, and time shall not be of the essence in this Contract.

4.2 Within five days of Artifax’s delivery to the Customer of any Deliverable, the Customer shall review the Deliverable to confirm that it functions in material conformance with the applicable portion of the Software Specification. If the Deliverable fails in any material respect to conform with the applicable portion of the Order Specification, the Customer shall give Artifax a detailed description of any such non-conformance (Error), in writing, within the five-day review period. If Artifax accepts the Error, Artifax will endeavour to correct the same as soon as possible.

4.3 If the Customer does not provide any written comments in the five-day period described above, or if the Deliverable is found to conform with the Software Specification, the Deliverable shall be deemed accepted.

5. Hosting Services, Maintenance and Support

5.1 The Software shall either be installed on the Customer Server or a server provided by Artifax, as set out in the Order Specification.

5.2 If the Software is installed on the Customer Server, the Customer must ensure that the Customer Server meets the minimum required specification as set out from Artifax to the Customer from time to time.

5.3 The Customer must ensure that the Customer Web Browser meets the minimum required specification as set out from Artifax to the Customer from time to time.

5.4 Artifax shall perform the Maintenance and Support Services and (if required by the Customer in the Order Specification) the Hosting Services.

5.5 In relation to Licensed Users:
(a) the Customer’s access to the Hosting Services shall be limited to the number of Fixed Licensed Users and Floating Licensed Users (each of whom may have a read write or a read only licence) set out in Part 1 of the Order Specification logged into the Software at any one time, such users all being employees or independent contractors of the Customer;
(b) the Customer shall maintain a written list of current Fixed Licensed Users of the Software, and the Customer shall provide such list to Artifax as may be reasonably requested by Artifax from time to time;
(c) the Customer shall ensure that each Licensed User keeps a secure password for his use of the Software;
(d) Artifax may audit the Software regarding the username for each Licensed User; and
(e) if such audit reveals that passwords have been provided to individuals who are not Licensed Users, and without prejudice to Artifax’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.

5.6 In relation to the Software:
(a) Artifax hereby grants to the Customer on and subject to the terms and conditions of this Contract a non-exclusive, non-transferable licence to allow Licensed Users to access the Software and to use the Software solely for the Customer’s business purposes;
(b) the Customer shall not store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the rights provided under this clause 5.6 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
(d) the Customer shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Contract or as may be allowed by any applicable law which is incapable of exclusion by contract between the parties; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by contract between the parties; or
(iii) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or
(iv) use the Software or Hosting Services to provide services to third parties; or
(v) transfer, temporarily or permanently, any of its rights under this Contract, or
(vi) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 5.6(d); and
(e) the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Artifax promptly of any such unauthorised access or use.
5.7 In the event that the Hosting Services supplied by Artifax are provided by Amazon Web Services (“AWS”) the Customer acknowledges and agrees that:
(a) Artifax is not responsible for any failure of AWS to provide the Hosting Services and the Customer is bound by, and shall comply with, any terms and conditions required by AWS (including under any agreement between Artifax and AWS) in connection with the Hosting Services. AWS’s terms and conditions can be found at:
http://aws.amazon.com/agreement/

(b) Artifax reserves the right to use any third-party provider to host the Software and in the event of any change of host as specified in the Order Specification shall notify the Customer in accordance with the terms of this Contract.

6. Customer Data

6.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 Artifax shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Artifax to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Artifax. Artifax shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Artifax to perform services related to Customer Data maintenance and back-up).

6.3 If Artifax processes any personal data on the Customer’s behalf when performing its obligations under this Contract, the parties record their intention that the Customer shall be the data controller and Artifax shall be a data processor and in any such case:
(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Artifax so that Artifax may lawfully process the personal data in accordance with this Contract on the Customer’s behalf;
(b) Artifax shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Customer from time to time;
(c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage; and
(d) the Customer agrees that Artifax may store the Customer’s name and other information obtained during the sales and support process in a computerised directory for internal use only. The Customer also agrees that Artifax may include their name, URL link and image on the client lists (including Artifax’s website and/or social media and other marketing media from time to time).

7. Artifax’s obligations

7.1 Artifax undertakes that the Services will be performed substantially in accordance with the Software Specification and with reasonable skill and care.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Artifax’s instructions or modification or alteration of the Software by any party other than Artifax or Artifax’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, Artifax will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Artifax does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.

7.3 This Contract shall not prevent Artifax from entering into similar contracts with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Contract.

7.4 Artifax shall comply with the provisions of Appendix 1 (Service Level Arrangements), but the Customer acknowledges that it shall be required to meet the minimum browser or system specification for accessing the Software as set out on the Artifax website or via communications from Artifax from time to time, and Artifax shall not be liable for any failure to access or use the Software where the minimum browser or system specifications have not been met by the Customer.

8. Customer’s obligations

8.1 The Customer shall:
(a) provide Artifax with:
(i) all necessary co-operation in relation to this Contract; and
(ii) all necessary access to such information as may be required by Artifax;
in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications;
(b) comply with all applicable laws and regulations with respect to its activities under this Contract; and
(c) carry out all other Customer responsibilities set out in this Contract or in any the Order Specification in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Artifax may adjust any timetable or delivery Schedule set out in this Contract as reasonably necessary.

8.2 The Customer acknowledges that the Fees for the Services have been calculated on the basis of the Customer’s Standard Usage Patterns. If, in the reasonable opinion of Artifax, the Customer uses an excessive amount of data transfer (bandwidth) and/or excessive storage capacity in any single month than Artifax may, at its discretion: –
(a) Limit or “throttle” the Customers bandwidth or capacity; and/or
(b) Charge the Customer the reasonable costs as a result of that excessive usage (such charges to be paid in accordance with clause 9.6 below).

9. Charges and payment

9.1 The Customer shall pay the Fees set out in Part 2 of the Order Specification on the Commencement Date.

9.2 For Customers purchasing a subscription Software Licence the annual subscription commences on the Installation Date and includes the charge for Maintenance and Support and for Hosting Services (if applicable). The annual subscription is payable in advance by 12 equal monthly instalments by Direct Debit to such bank account as Artifax may specify from time to time.

9.3 For Customers purchasing a perpetual Software Licence the annual fee for Maintenance and Support (and, if applicable, for Hosting Services) will be payable in advance on each anniversary of the Installation Date.

9.4 Fees for additional services will be invoiced as incurred.

9.5 All amounts and fees stated or referred to in this Contract are exclusive of Value Added Tax, which shall be added to Artifax’s invoice(s) at the appropriate rate.

9.6 Each invoice is due and payable 14 days after the invoice date. If Artifax has not received payment within five days after the due date, and without prejudice to any other rights and remedies of Artifax:
(a) Artifax shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10. Change control

10.1 The Customer and Artifax shall meet as required to discuss matters relating to this Contract. If Artifax wishes to change the scope of the Services (including as a result to Customer requests for additional services), it shall submit details of the change to the Customer in writing prior to the change taking effect.

10.2 If either party requests a change to the scope or execution of the Services, Artifax shall, within a reasonable time, provide a written estimate to the Customer of:
(a) the likely time required to implement the change;
(b) any variations to the Fees arising from the change;
(c) the likely effect of the change on the Order Specification; and
(d) any other impact of the change on the terms of this Contract.

10.3 If the Customer requests a change (whether to increase the number of Licensed Users or otherwise), Artifax has no obligation to agree to the change unless and until the parties have agreed in writing the necessary variations to its charges, the Order Specification and any other relevant terms of this Contract to take account of the change.

11. Proprietary rights

11.1 The Customer acknowledges and agrees that Artifax and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Contract does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

11.2 Artifax confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract.

12. Confidentiality

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party; or
(b) was in the other party’s lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Contract.

12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Contract.

12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

12.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute Artifax’s Confidential Information.

12.6 Artifax acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 No party shall make, or permit any person to make, any public announcement concerning this Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.8 This clause 12 shall survive termination of this Contract, however arising.

13. Warranty and Indemnity

13.1 (a) For the period of 90 days after the Installation Date Artifax warrants that the Software will substantially conform to the Software Specification. Artifax does not warrant that the Software will be error-free or that that errors will be remedied.
(b) The said warranty shall be subject to the Customer complying with its obligations under the Contract and to there having been no alterations made to the Software by any person other than authorised by Artifax.
(c) Artifax shall have no liability or obligation under the said warranty other than to make reasonable efforts to remedy errors and defects in the Software by the provision of materials and services within a reasonable time and without charge to the Customer.
(d) The Customer acknowledges that the Software has not been written to meet the Customer’s individual requirements and that the Software is a standard product. Accordingly, it is the Customer’s responsibility to rely on its own skill and judgment to ensure that the facilities and functions of the Software meet its requirements.
(e) Artifax excludes all other representations and warranties regarding the Software, including express or implied warranties of fitness for purpose.

13.2 The Customer shall defend, indemnify and hold harmless Artifax against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software or Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Artifax provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.

13.3 Subject to the limitations of liability in clause 14, Artifax shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Commencement Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Artifax is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Artifax in the defence and settlement of such claim, at Artifax’s expense; and
(c) Artifax is given sole authority to defend or settle the claim.
13.4 In the defence or settlement of the claim, Artifax may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Contract without liability to the Customer. Artifax shall have no liability if the alleged infringement is based on:
(a) a modification of the Software by anyone other than Artifax; or
(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by Artifax; or
(c) the Customer’s use of the Software after notice of the alleged or actual infringement from Artifax or any appropriate authority.

13.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Artifax’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

14. Limitation of liability

14.1 This clause 14 sets out the entire financial liability of Artifax (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this Contract;
(b) in respect of any use made by the Customer of the Services, the Software, the Deliverables or any part of them; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Contract.

14.2 Except as expressly and specifically provided in this Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. Artifax shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Artifax by the Customer in connection with the Services, or any actions taken by Artifax at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract.

14.3 Nothing in this Contract excludes the liability of Artifax:
(a) for death or personal injury caused by Artifax’s negligence; or
(b) for fraud or fraudulent misrepresentation.

14.4 The Service Level Arrangements state the Customer’s full and exclusive right and remedy, and Artifax’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

14.5 Subject to clause 14.3 and clause 14.4:
(a) Artifax shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Contract; and
(b) Artifax’s total aggregate liability in contract (including in respect of the indemnity at clause 13.3), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

15. Term and Termination

15.1 This Contract shall commence on the Commencement Date and shall continue for the Contract Term, unless otherwise terminated as provided in this clause 15. This Contract shall automatically renew for a further 12 months’ period from each anniversary of the Installation Date, unless either party notifies the other, in writing, at least 30 days before the end of an anniversary of the Installation Date.

15.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15.3 Artifax may terminate this Contract and the Software Licence if the Customer fails to pay the annual Fee for Maintenance and Support within 10 days of a reminder from Artifax that such Fee is overdue.

15.4 On termination of this Contract for any reason:
(a) all licences granted under this Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) Artifax may destroy or otherwise dispose of any of the Customer Data in its possession unless Artifax receives, no later than ten days after the Commencement Date of the termination of this Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Artifax shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Artifax in returning or disposing of Customer Data;
(d) any outstanding Fees owed to Artifax by the Customer shall immediately be payable in full, including any annual Fees payable on a monthly basis by the Customer; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

16. Force majeure
Neither party shall be in breach of this contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Artifax or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Contract by giving 30 days’ written notice to the other party.

17. General

17.1 Assignment and subcontracting.
(a) Artifax may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of Artifax, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

17.2 Notices. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s main email address.

17.3 Severance.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

17.4 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

17.5 Third parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.

17.6 Variation. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Artifax.

17.7 Governing law and jurisdiction. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

Appendix 1 Service Level Arrangements

1. For the purposes of this document “support items” includes: the software and hardware provided by Artifax.

2. Artifax shall provide support during office hours which are Monday – Friday 9.00am – 5.30pm, except bank holidays. For outside the normal support hours of operation Artifax shall provide a mobile phone number. Support calls outside standard support hours will be charged according to Artifax’s standard scale of charges, from time to time.

3. If the Customer at any time discovers any fault with the supported items it shall as soon as is reasonably practicable notify Artifax of the same.

4. Artifax shall use its reasonable endeavours to ensure that the fault is corrected within the category time scales referred to below using all reasonable care and skill.

Category timescales:

“Category A”, shall be a fault which makes the support items (or any part thereof) unusable and which has a material effect upon the functionality, accuracy or performance of any function upon which the Customer relies for the efficient conduct of the relevant part of its business;

“Category B”, shall be a fault which is not Category A or Category C, i.e. faults that can easily worked round which do not have a material effect upon the functionality, accuracy or performance of any function upon which the Customer relies for the efficient conduct of the relevant part of its business; and

“Category C” shall be a minor cosmetic fault, which does not affect the accuracy or performance of the supported items and also questions about the setting up or use of the system.

Artifax shall respond to faults notified to it by the Customer dependent on the category of fault reported in the following manner:

CATEGORY A
Artifax shall respond within 30 minutes and use its reasonable endeavours to fix the fault concerned within four working hours, in each case of notification (but in the event that Artifax fails to achieve a four working hour fix, it will use its reasonable endeavours to achieve a fix as soon as possible thereafter). In providing a fix for Category A faults, Artifax’s first priority shall be to restore the support item’s functionality to working order as soon as possible;

CATEGORY B
Artifax shall use its reasonable endeavours to respond to the notification within one hour and to fix the fault concerned as fast as possible and in any event within 10 working days of notification (but in the event that Artifax fails to achieve a fix within this timescale, it will use reasonable endeavours to achieve a fix as soon as possible thereafter). In doing so Artifax shall not be required to work outside normal working hours.

CATEGORY C
Artifax shall respond to the notification within one hour and shall fix the fault within 6 months of notification (but in the event that Artifax fails to achieve a fix within this timescale, it will use reasonable endeavours to achieve a fix as soon as possible thereafter). In doing so Artifax shall not be required to work outside normal working hours.

5. The Customer acknowledges that Artifax may provide a temporary, practical work around solution (as opposed to a permanent fix) for a fault; if Artifax does provide a temporary work-around solution it will however use its reasonable endeavours to provide a permanent fix as soon as possible thereafter.

6. Immediately following such a software fault correction being completed, Artifax shall deliver to the Customer the corrected version of the object code for the software, including documentation specifying the nature of the correction and providing instructions for the proper use of the corrected version of the software.

ARTIFAX SOFTWARE LIMITED

Terms and Conditions for Artifax Event Classic

1. Interpretation

1.1. The definitions and rules of interpretation in this clause apply in this Contract.

Artifax: Artifax Software Limited (Company Number 2007321) whose registered office is at 17A West Street, Epsom, Surrey KT18 7RL.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Commencement Date: the date set out in Part 1 of the Order Specification.

Confidential Information: information that is proprietary or confidential or identified as Confidential Information in clause 12.

Configuration Services: the configuration and related work referred to in Part 3 of the Order Specification, to be performed by Artifax.

Contract: the contract between Artifax and the Customer for the licensing of the Software and the supply of the Services, comprising the Order Specification and these Terms and Conditions.

Contract Term: if the Customer purchases a subscription Software Licence the 12 month period from the Installation Date, and if the Customer purchases a perpetual Software Licence the period from the Installation Date until termination of the Contract.

Customer: the customer identified on the Order Specification.

Customer Contact(s): the individual(s) appointed by the Customer from time to time who shall serve as Artifax’s primary contact(s) for Artifax’s activities under this Contract.

Customer Data: the data inputted into the information fields of the Software by the Customer, by Licensed Users, or by Artifax on the Customer’s behalf.

Customer Server: the customer’s server used to host the Software and meeting the minimum specification as directed from Artifax from time to time.

Deliverable: a defined level of functionality or other preset milestone within a particular phase of the Configuration Services, to be more particularly described in the Order Specification.

Fees: the fees and charges payable to Artifax, as described in Part 2 of the Order Specification.

Fixed Licensed Users: means a fixed number of named Licensed Users as set out in clause 5.4.

Floating Licensed Users: means the total number of unnamed Licensed Users that the Customer may have using the Software at any given time as further described in clause 5.4.

Hosting Services: the services that Artifax provides to allow Licensed Users to access and use the Software.

Installation Date: the date that the Software is installed in the hosting environment as set out in Part 1 of the Order Specification.

Licensed Users: those employees and independent contractors of the Customer who are entitled to use the Software through the Hosting Services under this Contract, as further described in clause 5.4.

Maintenance and Support: any error corrections, updates and upgrades that Artifax may provide or perform with respect to the Software and Hosting Services. Maintenance and Support does not include training, which is available upon request subject to a separate charge. If the Software is installed on a Customer Server then Artifax will provide any error corrections, updates and upgrades for installation by the Customer.

Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.

Order Specification: the order form setting out details of the Software licence and the Services.

Service Level Arrangements: the service level arrangements set out in Appendix 1.

Services: the Configuration Services, Hosting Services and/or Maintenance and Support as applicable, given the context in which the term Services is used.

Software: Artifax’s proprietary software in machine-readable object code form only known as “Artifax Event Classic” and its plug-ins and modules described on Artifax’s website at www.artifax.net, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under this Contract.

Software Licence: the license granted by Artifax to the Customer for the use of Software in accordance with the provisions of clause 3.

Software Specification: the functionality and performance specifications for the Software, as described on Artifax’s website at www.artifax.net.

Standard Usage Patterns: the average usage by the Customer over the previous three months of use of the Services.

Virus: any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 A reference to writing or written includes faxes and e-mail.

2. Basis of Contract

2.1 The Order Specification constitutes an offer by the Customer for the licensing of the Software and the supply of the Services in accordance with these Terms and Conditions.

2.2 The Order Specification shall only be deemed to be accepted when Artifax issues written acceptance of the Order Specification at which point and on which date the Contract shall come into existence.

2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Artifax which is not set out in the Contract.

2.4 Any drawings, descriptive matter or advertising issued by Artifax and any descriptions of the Services or illustrations or descriptions of the Services contained in Artifax’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.5 These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.6 Any quotation given by Artifax shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue.

2.7 If there is an inconsistency between any of the provisions in these Terms and Conditions and the Order Specification, the provisions in the Order Specification shall prevail.

3. Software Licence

3.1 In consideration of the Fees paid and payable in the future by the Customer to Artifax, Artifax grants to the Customer a non-exclusive licence to use the Software for its own internal business purposes only in accordance with the provisions of this Contract, for the following periods:

(a) If the Customer purchases a perpetual Software Licence the licence period shall be perpetual but subject to automatic termination upon termination of the Contract for any reason; and

(b) If the Customer purchases a subscription Software Licence the licence period shall be initially for 12 months from the Installation Date, subject to renewal upon each anniversary of the Installation Date.

3.2 It is a condition of either Software Licence (perpetual or subscription) that at all times the Customer pays the annual Fee for Maintenance and Support. For Customers purchasing a subscription Software Licence such Fee is included in the subscription. Failure to pay such Fee will entitle Artifax to terminate the Contract and the Software Licence.

3.3 The Customer shall not:

(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;

(b) allow the Software to become the subject of any charge, lien or encumbrance; and

(c) deal in any other manner with any or all of its rights and obligations under this Contract,

without the prior written consent of Artifax, such consent not to be unreasonably withheld or delayed.

3.4 Artifax may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this Contract provided it gives written notice to the Customer.

4. Configuration Services

4.1 Artifax shall perform the Configuration Services in accordance with the timetable set out in the Order Specification. Artifax shall use reasonable endeavours to meet the performance dates set out in Order Specification, but any such dates shall be estimates only, and time shall not be of the essence in this Contract.

4.2 Within five days of Artifax’s delivery to the Customer of any Deliverable, the Customer shall review the Deliverable to confirm that it functions in material conformance with the applicable portion of the Software Specification. If the Deliverable fails in any material respect to conform with the applicable portion of the Order Specification, the Customer shall give Artifax a detailed description of any such non-conformance (Error), in writing, within the five-day review period. If Artifax accepts the Error, Artifax will endeavour to correct the same as soon as possible.

4.3 If the Customer does not provide any written comments in the five-day period described above, or if the Deliverable is found to conform with the Software Specification, the Deliverable shall be deemed accepted.

5. Hosting Services, Maintenance and Support

5.1 The Software shall either be installed on the Customer Server or a server provided by Artifax, as set out in the Order Specification.

5.2 If the Software is installed on the Customer Server the Customer must ensure that the Customer Server meets the minimum required specification as set out from Artifax to the Customer from time to time.

5.3 Artifax shall perform the Maintenance and Support Services and (if required by the Customer in the Order Specification) the Hosting Services.

5.4 In relation to Licensed Users:

(a) the Customer’s access to the Hosting Services shall be limited to the number of Fixed Licensed Users and Floating Licensed Users (each of whom may have a read write or a read only licence) set out in Part 1 of the Order Specification logged into the Software at any one time, such users all being employees or independent contractors of the Customer;

(b) the Customer shall maintain a written list of current Fixed Licensed Users of the Software, and the Customer shall provide such list to Artifax as may be reasonably requested by Artifax from time to time;

(c) the Customer shall ensure that each Licensed User keeps a secure password for his/her use of the Software;

(d) Artifax may audit the Software regarding the name for each Licensed User; and

(e) if such audit reveals that passwords have been provided to individuals who are not Licensed Users, and without prejudice to Artifax’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.

5.5 In relation to the Software:

(a) Artifax hereby grants to the Customer on and subject to the terms and conditions of this Contract a non-exclusive, non-transferable licence to allow Licensed Users to access the Software and to use the Software solely for the Customer’s business purposes;

(b) the Customer shall not store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

(c) the rights provided under this clause 5.5 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;

(d) the Customer shall not:

(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this Contract or as may be allowed by any applicable law which is incapable of exclusion by contract between the parties; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by contract between the parties; or

(iii) access all or any part of the Software or Hosting Services in order to build a product or service which competes with the Software and/or the Services; or

(iv) use the Software or Hosting Services to provide services to third parties; or

(v) transfer, temporarily or permanently, any of its rights under this Contract, or

(vi) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 5.5(d); and

(e) the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Artifax promptly of any such unauthorised access or use.

5.6 In the event that the Hosting Services supplied by Artifax are provided by Memset Hosting (“Memset”) the Customer acknowledges and agrees that:

(a) Artifax is not responsible for any failure of Memset to provide the Hosting Services and the Customer is bound by, and shall comply with, any terms and conditions required by Memset (including under any agreement between Artifax and Memset) in connection with the Hosting Services. AWS’s terms and conditions can be found at:

http://www.memset.com/about-us/service/

(b) Artifax reserves the right to use any third-party provider to host the Software and in the event of any change of host as specified in the Order Specification shall notify the Customer in accordance with the terms of this Contract.

6. Customer Data

6.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

6.2 Artifax shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Artifax to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Artifax. Artifax shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Artifax to perform services related to Customer Data maintenance and back-up).

6.3 If Artifax processes any personal data on the Customer’s behalf when performing its obligations under this Contract, the parties record their intention that the Customer shall be the data controller and Artifax shall be a data processor and in any such case:

(a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Artifax so that Artifax may lawfully process the personal data in accordance with this Contract on the Customer’s behalf;

(b) Artifax shall process the personal data only in accordance with the terms of this Contract and any lawful instructions reasonably given by the Customer from time to time;

(c) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage; and

(d) the Customer agrees that Artifax may store the Customer’s name and other information obtained during the sales and support process in a computerised directory for internal use only. The Customer also agrees that Artifax may include their name, URL link and image on the client lists (including Artifax’s website and/or social media and other marketing media from time to time).

7. Artifax’s obligations

7.1 Artifax undertakes that the Services will be performed substantially in accordance with the Software Specification and with reasonable skill and care.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to Artifax’s instructions or modification or alteration of the Software by any party other than Artifax or Artifax’s duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, Artifax will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Artifax does not warrant that the Customer’s use of the Software and the Services will be uninterrupted or error-free.

7.3 This Contract shall not prevent Artifax from entering into similar contracts with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Contract.

8. Customer’s obligations

8.1 The Customer shall:

(a) provide Artifax with:

(i) all necessary co-operation in relation to this Contract; and

(ii) all necessary access to such information as may be required by Artifax;

in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications;

(b) comply with all applicable laws and regulations with respect to its activities under this Contract; and

(c) carry out all other Customer responsibilities set out in this Contract or in any the Order Specification in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Artifax may adjust any timetable or delivery Schedule set out in this Contract as reasonably necessary.

8.2 The Customer acknowledges that the Fees for the Services have been calculated on the basis of the Customer’s Standard Usage Patterns. If, in the reasonable opinion of Artifax, the Customer uses an excessive amount of data transfer (bandwidth) and/or excessive storage capacity in any single month than Artifax may, at its discretion:-

(a) Limit or “throttle” the Customers bandwidth or capacity; and/or

(b) Charge the Customer the reasonable costs as a result of that excessive usage (such charges to be paid in accordance with clause 9.6 below).

9. Charges and payment

9.1 The Customer shall pay the Fees set out in Part 2 of the Order Specification on the Commencement Date.

9.2 For Customers purchasing a subscription Software Licence the annual subscription commences on the Installation Date and includes the charge for Maintenance and Support and for Hosting Services (if applicable). The annual subscription is payable by 12 equal monthly instalments by standing order to such bank account as Artifax may specify from time to time.

9.3 For Customers purchasing a perpetual Software Licence the annual fee for Maintenance and Support (and, if applicable, for Hosting Services) will be payable in advance on each anniversary of the Installation Date.

9.4 Fees for additional services will be invoiced as incurred.

9.5 All amounts and fees stated or referred to in this Contract are exclusive of value added tax, which shall be added to Artifax’s invoice(s) at the appropriate rate.

9.6 Each invoice is due and payable 14 days after the invoice date. If Artifax has not received payment within five days after the due date, and without prejudice to any other rights and remedies of Artifax:

(a) Artifax shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10. Change control

10.1 The Customer and Artifax shall meet as required to discuss matters relating to this Contract. If Artifax wishes to change the scope of the Services (including as a result to Customer requests for additional services), it shall submit details of the change to the Customer in writing prior to the change taking effect.

10.2 If either party requests a change to the scope or execution of the Services, Artifax shall, within a reasonable time, provide a written estimate to the Customer of:

(a) the likely time required to implement the change;

(b) any variations to the Fees arising from the change;

(c) the likely effect of the change on the Order Specification; and

(d) any other impact of the change on the terms of this Contract.

10.3 If the Customer requests a change (whether to increase the number of Licensed Users or otherwise), Artifax has no obligation to agree to the change unless and until the parties have agreed in writing the necessary variations to its charges, the Order Specification and any other relevant terms of this Contract to take account of the change.

11. Proprietary rights

11.1 The Customer acknowledges and agrees that Artifax and/or its licensors own all intellectual property rights in the Software and the Services. Except as expressly stated herein, this Contract does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

11.2 Artifax confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Contract.

12. Confidentiality

12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Contract. A party’s Confidential Information shall not include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party; or

(b) was in the other party’s lawful possession before the disclosure; or

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

12.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Contract.

12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Contract.

12.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

12.5 The Customer acknowledges that the Software, the results of any performance tests of the Software and the Services constitute Artifax’s Confidential Information.

12.6 Artifax acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 No party shall make, or permit any person to make, any public announcement concerning this Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12.8 This clause 12 shall survive termination of this Contract, however arising.

13. Warranty and Indemnity

13.1 (a) For the period of 90 days after the Installation Date Artifax warrants that the Software will substantially conform to the Software Specification. Artifax does not warrant that the Software will be error-free or that that errors will be remedied.

(b) The said warranty shall be subject to the Customer complying with its obligations under the Contract and to there having been no alterations made to the Software by any person other than authorised by Artifax.

(c) Artifax shall have no liability or obligation under the said warranty other than to make reasonable efforts to remedy errors and defects in the Software by the provision of materials and services within a reasonable time and without charge to the Customer.

(d) The Customer acknowledges that the Software has not been written to meet the Customer’s individual requirements and that the Software is a standard product. Accordingly, it is the Customer’s responsibility to rely on its own skill and judgment to ensure that the facilities and functions of the Software meet its requirements.

(e) Artifax excludes all other representations and warranties regarding the Software, including express or implied warranties of fitness for purpose.

13.2 The Customer shall defend, indemnify and hold harmless Artifax against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software or Services, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) Artifax provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c) the Customer is given sole authority to defend or settle the claim.

13.3 Subject to the limitations of liability in clause 14, Artifax shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any United Kingdom patent effective as of the Commencement Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a) Artifax is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to Artifax in the defence and settlement of such claim, at Artifax’s expense; and

(c) Artifax is given sole authority to defend or settle the claim.

13.4 In the defence or settlement of the claim, Artifax may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this Contract without liability to the Customer. Artifax shall have no liability if the alleged infringement is based on:

(a) a modification of the Software by anyone other than Artifax; or

(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by Artifax; or

(c) the Customer’s use of the Software after notice of the alleged or actual infringement from Artifax or any appropriate authority.

13.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Artifax’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

14. Limitation of liability

14.1 This clause 14 sets out the entire financial liability of Artifax (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a) arising under or in connection with this Contract;

(b) in respect of any use made by the Customer of the Services, the Software, the Deliverables or any part of them; and

(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Contract.

14.2 Except as expressly and specifically provided in this Contract:

(a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Services by the Customer, and for conclusions drawn from such use. Artifax shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Artifax by the Customer in connection with the Services, or any actions taken by Artifax at the Customer’s direction; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Contract

14.3 Nothing in this Contract excludes the liability of Artifax:

(a) for death or personal injury caused by Artifax’s negligence; or

(b) for fraud or fraudulent misrepresentation.

14.4 The Service Level Arrangements state the Customer’s full and exclusive right and remedy, and Artifax’s only obligation and liability in respect of, the performance and/or availability of the Service, or their non-performance and non-availability.

14.5 Subject to clause 14.3 and clause 14.4:

(a) Artifax shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Contract; and

(b) Artifax’s total aggregate liability in contract (including in respect of the indemnity at clause 13.3), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid for the Services during the 12 months preceding the date on which the claim arose.

15. Term and Termination

15.1 This Contract shall commence on the Commencement Date and shall continue for the Contract Term, unless otherwise terminated as provided in this clause 15. If the Customer has purchased a subscription Software Licence this Contract shall automatically renew for a further 12 months period from each anniversary of the Installation Date, unless either party notifies the other, in writing, at least 30 days before the end of an anniversary of the Installation Date.

15.2 Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or

(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15.3 Artifax may terminate this Contract and the Software Licence if the Customer fails to pay the annual Fee for Maintenance and Support within 10 days of a reminder from Artifax that such Fee is overdue.

15.4 On termination of this Contract for any reason:

(a) all licences granted under this Contract shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

(c) Artifax may destroy or otherwise dispose of any of the Customer Data in its possession unless Artifax receives, no later than ten days after the Commencement Date of the termination of this Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Artifax shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Artifax in returning or disposing of Customer Data;

(d) any outstanding Fees owed to Artifax by the Customer shall immediately be payable in full, including any annual Fees payable on a monthly basis by the Customer; and

(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

16. Force majeure

Neither party shall be in breach of this contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Artifax or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Contract by giving 30 days’ written notice to the other party.

18. General

18.1 Assignment and subcontracting.

(a) Artifax may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.

(b) The Customer shall not, without the prior written consent of Artifax, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

18.2 Notices. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by email to the other party’s main email address.

18.3 Severance.

(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

18.4 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

18.5 Third parties. A person who is not a party to the Contract shall not have any rights under or in connection with it.

18.6 Variation. Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by Artifax.

18.7 Governing law and jurisdiction. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

Appendix 1 Service Level Arrangements

1. For the purposes of this document “support items” includes: the software and hardware provided by Artifax.

2. Artifax shall provide support during office hours which are Monday – Friday 9.00am – 5.30pm, except bank holidays. For outside the normal support hours of operation Artifax shall provide a mobile phone number. Support calls outside standard support hours will be charged according to Artifax’s standard scale of charges, from time to time.

3. If the Customer at any time discovers any fault with the supported items it shall as soon as is reasonably practicable notify Artifax of the same.

4. Artifax shall use its reasonable endeavours to ensure that the fault is corrected within the category time scales referred to below using all reasonable care and skill.

Category timescales:

“Category A”, shall be a fault which makes the support items (or any part thereof) unusable and which has a material effect upon the functionality, accuracy or performance of any function upon which the Customer relies for the efficient conduct of the relevant part of its business;

“Category B”, shall be a fault which is not Category A or Category C, i.e. faults that can easily worked round which do not have a material effect upon the functionality, accuracy or performance of any function upon which the Customer relies for the efficient conduct of the relevant part of its business; and

“Category C” shall be a minor cosmetic fault, which does not affect the accuracy or performance of the supported items and also questions about the setting up or use of the system.

Artifax shall respond to faults notified to it by the Customer dependent on the category of fault reported in the following manner:

CATEGORY A
Artifax shall respond within 30 minutes and use its reasonable endeavours to fix the fault concerned within four working hours, in each case of notification (but in the event that Artifax fails to achieve a four working hour fix, it will use its reasonable endeavours to achieve a fix as soon as possible thereafter). In providing a fix for Category A faults, Artifax’s first priority shall be to restore the support item’s functionality to working order as soon as possible;

CATEGORY B
Artifax shall use its reasonable endeavours to respond to the notification within one hour and to fix the fault concerned as fast as possible and in any event within 10 working days of notification (but in the event that Artifax fails to achieve a fix within this timescale, it will use reasonable endeavours to achieve a fix as soon as possible thereafter). In doing so Artifax shall not be required to work outside normal working hours.

CATEGORY C
Artifax shall respond to the notification within one hour and shall fix the fault within 6 months of notification (but in the event that Artifax fails to achieve a fix within this timescale, it will use reasonable endeavours to achieve a fix as soon as possible thereafter). In doing so Artifax shall not be required to work outside normal working hours.

5. The Customer acknowledges that Artifax may provide a temporary, practical work around solution (as opposed to a permanent fix) for a fault; if Artifax does provide a temporary work-around solution it will however use its reasonable endeavours to provide a permanent fix as soon as possible thereafter.

6. Immediately following such a software fault correction being completed, Artifax shall deliver to the Customer the corrected version of the object code for the software, including documentation specifying the nature of the correction and providing instructions for the proper use of the corrected version of the software.