AQUARIUM SOFTWARE LIMITED TERMS AND CONDITIONS

1. Grant of licence and supply of services

   Subject to these Conditions and in consideration of the payment by the Customer to the Licensor of the Charges in accordance with Condition 2, the Licensor:

   1. undertakes to the Customer to configure the Service and to provide the training as set out in the Charges section of the Particulars;
   2. grants to the Customer a non-exclusive non-transferable licence to access and use the Service via the Website in accordance with the Permitted Use and all the provisions of these Conditions from the Availability Date until the Contract is terminated in accordance with Condition 9 or otherwise.
2. Charges
   1. The Customer undertakes to pay:
      1. the Charges and the User Registration Fees; and
      2. the User Subscription Fees to the Licensor in accordance with the Payment Terms without any set- off, deduction or other form of withholding, unless otherwise required by law.
   2. All amounts stated in the Contract are exclusive of any VAT, which will be paid by the Customer provided that the Licensor issues an appropriate invoice.
   3. Any additional services such as further training, consultancy, configuration, development or archiving will be chargeable at the Licensor's prevailing rates from time to time in force.
   4. If the Customer wishes to register additional Permitted Users, it shall give the Licensor written notice. Upon payment of the User Registration Fee and the applicable User Subscription Fees in respect of those proposed Permitted Users, the Licensor shall enable those Permitted Users to make Permitted Use of the Service.
   5. The Licensor shall have the right to review the User Registration Fee and the User Subscription Fees annually, by giving the Customer at least three months' prior written notice.
   6. If the Customer makes use of the Service which the Licensor deems (in its absolute discretion) to cause a degradation of the performance of the Service, the Licensor reserves the right to increase the User Subscription Fees payable by the Customer or to offer the Customer an alternative service.
   7. The licensor shall charge interest on late payment of any sum due under the Contract at the rate of 4% per annum above the base rate from time to time of Barclays Bank plc (compounded monthly) from the due date until payment.
3. Back-ups
   1. The Licensor shall take daily backups of all data processed by the Customer using the Service.
4. Customer's Obligations
   1. At any time upon the reasonable request of the Licensor the Customer shall suspend entry or processing of data and shall if it is reasonably necessary to maintain the integrity of the Customer's data enter or re- enter data and use backed-up versions of data.
   2. The Customer must maintain the confidentiality of all passwords issued by the Licensor to the Permitted Users. The Customer is responsible for all use of such passwords, whether or not such use was actually or expressly authorised by the Customer. The Customer must immediately notify the Licensor of any unauthorised use of any password or any other known or suspected breach of security or any copying of any part of the Service.
   3. The Customer is responsible for obtaining and maintaining, at its own expense, all computer hardware, communication equipment and access lines necessary to access and use the Service.
   4. The Customer shall not store, distribute or transmit any material through the Service that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive, facilitates illegal activity, depicts sexually explicit images, promotes unlawful violence, discrimination based on gender, colour, religious belief, sexual orientation, disability or any other illegal activities.
   5. The Customer shall not create internet links to the Service or frame or mirror any part of the Service.
   6. The Customer shall not use the Service to send bulk email or any unsolicited messages in violation of any applicable laws.
   7. The Customer shall not interfere with or disrupt the integrity or performance of the Service or the data comprised in the Service or attempt to gain unauthorised access to the system on which the Service is hosted or its related systems or networks.
   8. The Customer shall indemnify the Licensor and keep the Licensor at all times fully indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Licensor on a solicitor and own client basis) and other liabilities however arising directly or indirectly as a result of any breach or non-performance by the Customer of any of the Customer's undertakings, covenants, warranties or obligation under the Contract to a maximum value of 125% of the annual charges for the Customer’s use of the service.
5. Intellectual Property Rights
   1. The Customer agrees and acknowledges that all Intellectual Property Rights in the Service (including without limitation the name "Aquarium" and any other names used by the Licensor in relation to the Service) are and remain the exclusive property of the Licensor and its licensors.
   2. The Customer shall not:
      1. make copies of the software comprised in the Service or attempt to access the Service in any way other than that provided by the Licensor;
      2. adapt or decompile the whole or any part of the software comprised in the Service save as permitted by law;
      3. use the Service on behalf of any third party;
      4. attempt or procure a third party to reproduce the functionality of the Service; provided the Service is being provided by the Licensor.
   3. The Licensor will indemnify and hold harmless the Customer on an indemnity basis only against any damages (including costs) that may be awarded or payable by the Customer to any third party in respect of any claim or action that the Permitted Use of the Service (excluding the Third Party Components) by the Customer infringes the Intellectual Property Rights of any third party (an "Intellectual Property Infringement") provided that the Customer:
      1. gives notice to the Licensor of any suspected Intellectual Property Infringement forthwith upon becoming aware of the same;
      2. gives the Licensor the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the Licensor; and
      3. acts in accordance with the reasonable instructions of the Licensor and gives to the Licensor such assistance as it shall reasonably require in respect of the conduct of the said defence including without prejudice to the generality of the foregoing the filing of all pleadings and other court process and the provision of all relevant documents.
   4. The Licensor shall reimburse the Customer its reasonable costs incurred in complying with the provisions of Condition 5.3.
   5. The Licensor shall have no liability to the Customer in respect of an Intellectual Property Infringement if the same results from any breach of the Customer's obligations under the Contract.
   6. In the event that the Licensor fails per the criteria set out in 9.3.3, the format of the Customer’s data, the Customer’s data itself and the process defined by the Customer for managing the Customer’s data shall be owned by the Customer.
6. Warranty
   1. Each party represents and warrants that it has the legal power and authority to enter into the Contract.
   2. The Customer represents and warrants that all information provided to the Licensor by the Customer (including without limitation billing information) is true and accurate.
   3. Subject to the exceptions set out in Condition 6.5 and the limitations on its liability in Condition 7, the Licensor warrants that:
      1. its title to and property in the Service is free and unencumbered and that it has the right, power and authority to license the same upon the terms and conditions of the Contract;
      2. the Service will operate substantially in accordance with the Documentation;
   4. The Licensor shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following:
      1. the improper use (i.e use for a purpose for which it was not designed) operation or neglect of the Service and/or the operating system and/or Customer's Environment;
      2. the modification of the Service and/or the operating system and/or operating environment, or its merger (in whole or part) with any other service or software;
      3. the failure by the Customer to implement recommendations in respect of or solutions to faults previously advised by the Licensor;
      4. any third party service or software not operated by the Licensor.
   5. The Licensor does not warrant that the Service will meet the Customer's requirements or that the operation of the Service will be uninterrupted or error free.
   6. Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the Service and the Support are hereby excluded.
7. Limitation of liability
   1. The following provisions set out the entire liability of the Licensor (including any liability for the acts and omissions of its employees, agents and sub-contractors) to the Customer in respect of:
      1. any breach of its contractual obligations arising under the Contract; and
      2. any misrepresentation, misstatement or tortious act or omission including negligence arising under or in connection with the Contract.
   2. Any act or omission on the part of the Licensor or its employees, agents or sub-contractors falling within Condition 7.1 shall for the purposes of this Condition 7 be known as an "Event of Default".
   3. The liability of the Licensor to the Customer for death or injury resulting from its own negligence or that of its employees, agents or sub- contractors or for fraudulent misrepresentation or fraud shall not be limited.
   4. The Licensor's liability to the Customer in respect of any disability or inability of the Licensor lawfully to provide or license or permit the Permitted Use of the Service or for fraudulent misrepresentation shall not be limited.
   5. Subject to Conditions 7.3 and 7.4, the total liability of the Licensor in respect of all Events of Default shall be limited to damages of an amount equal to:
      1. £2,000,000 in respect of damage or loss to the tangible property of the Customer due to an Event of Default; and
      2. in respect of any other damage or loss, an amount equal to 125% of the Charges, User Registration Fees and User Subscription Fees paid by the Customer during the twelve month period prior to the Event of Default.
   6. Subject to Conditions 7.3 and 7.4, the Licensor shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill, management data, turnover or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Licensor had been advised of the possibility of the Customer incurring the same.
   7. Without prejudice to the generality of any other term of these Conditions and subject to Conditions 7.3 and 7.4, the Licensor shall not be liable for any damage or losses or for any additional damage or losses arising from an Event of Default arising from the failure of the Customer to use the Service in accordance with the Licensor's instructions and best data processing practices nor in respect of damage or loss arising from an Event of Default which occurs before the Licensor confirmed in writing to the Customer that the Service was ready to use on live data.
   8. If a number of Events of Default give rise substantially to the same loss, then they shall be regarded as giving rise to only one claim under the Contract.
   9. Subject to Conditions 7.3 and 7.4, the Licensor shall not be liable for any Event of Default which arises in whole or in part from any of the circumstances listed in Condition 6.5, nor for any delays in meeting its obligations due to causes beyond its reasonable control.
   10. Subject to Conditions 7.3 and 7.4 the Licensor shall not be liable to the Customer for any losses, damages, costs, expenses which the Customer shall suffer or incur by reason of:
       1. any unauthorised access or use of the Service or its access or use of the Service in breach of these Conditions;
       2. problems caused by software or hardware issues within the Customer's Environment;
       3. its failure to undertake essential system management and security functions recommended by the Licensor;
       4. its use of the Service after it became or should have become aware of an Event of Default but before the Licensor has confirmed that a solution has been completed.
   11. The Licensor will at all times use all reasonable endeavours to maintain an uninterrupted and error-free service. The Licensor cannot accept any liability for interruption to the availability or impairment of the performance of the Service if this is due to circumstances beyond the Licensor's direct control, in particular, interruption to the availability or degradation of the speed of the internet or the communications links which are provided to the Licensor or the Customer by third parties.
   12. The Customer acknowledges and agrees that computer software and services including the Service is not error, fault or bug free, nor secure from persons wishing to misuse, tamper with, erase, alter or in other ways corrupt computer systems and that the data, information and records they display, retrieve, collate, transfer, calculate or disseminate may be affected by such occurrences and the Customer agrees that the Licensor shall have no liability to the Customer for any such occurrences arising in respect of or in relation to the Service.
   13. The Service is a tool to aid the Customer, but the Customer should satisfy itself of the accuracy of any figures calculated using the Service and the accuracy of any forms or documents generated using the Service. The Customer acknowledges and agrees that it is responsible for providing all processes and documents stored within the Service and that the Licensor shall have no liability in connection with the same. The Customer is responsible for ensuring that any forms and/or precedent documents comprised within the Service are suitable for each purpose for which the Customer may use them. The Licensor will not be under any liability if the Service is used in a manner in breach of this Condition.
   14. The Customer declares and acknowledges that it has considered the provisions of this Condition 7 in detail including but without limitation the limitations on liability contained in Conditions 7.5, 7.6, 7.7, 7.9, 7.10, 7.11, 7.12 and 7.13, and considers them reasonable in the circumstances having taken into account among other factors the subject matter of the Contract.
8. Confidentiality
   1. Each of the parties undertakes to the other to keep confidential all information (written or oral) concerning the present and future business plans and external and internal affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into of the Contract (including all confidential information in or relating to the Service) save that which is:
      1. trivial or obvious;
      2. already in its possession other than as a result of a breach of this Condition;
      3. in the public domain other than as a result of a breach of this Condition.
   2. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Condition 8.1 by its employees, agents and sub- contractors.
   3. The Licensor may at its discretion monitor the Customer's use of the Software to determine and ensure compliance with these Conditions and to protect itself and the Licensor's other customers from fraudulent, unlawful or abusive use of the Service. The Licensor may disclose any content, record, use or other information to the extent reasonably necessary to protect the rights of the Licensor or to comply with any law, regulation or government request.
9. Termination
   1. The Contract shall continue until terminated in accordance with the provisions of this Condition 9. For the avoidance of doubt, the Licensor shall have the right to terminate the Customer's access to the Service immediately on termination.
   2. The Contract may be terminated by the Licensor or the Customer at any time after the first anniversary of the Availability Date provided at least 3 months' prior written notice has been sent by the party wishing to terminate to the other party.
   3. The Contract may be terminated forthwith by notice in writing to the Customer by the Licensor if:
      1. the Customer fails to pay any Charges in accordance with the provisions of Condition 2;
      2. the Customer commits any material breach of any term of the Contract;
      3. (if the Customer is a company or a limited liability partnership) the Customer shall make a proposal for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition, scheme or arrangement with (or assignment for the benefit of) its creditors generally or if the Customer shall be unable to pay its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986 or if a trustee, receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the Customer or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the Customer or for the appointment of an administrator (otherwise than for the purpose of an amalgamation or reconstruction)
      4. (if the Customer is a partnership) the Customer or any of the partners in the Customer enters into any composition or arrangement with its creditors, has a bankruptcy order made against it, has been subject to an application for an interim order under sections 253 or 273 of the Insolvency Act 1986, has a petition presented for an Administration Order under Part III of the Insolvent Partnerships Order 1994 (the "Order"), has a petition presented for winding up as an unregistered company under Parts IV or V of the Order, has an interim receiver of its property appointed under section 286 of the Insolvency Act 1986, is unable to pay its debts within the meaning of sections 267 and 268 of the Insolvency Act 1986 or has a receiver or manager appointed over any of its assets;
   4. In the event of any of the following, the Customer will inform the Licensor of its intentions in writing and will allow the Licensor the opportunity to review the ongoing impact of the arrangement in relation to the contract between the Licensor and the Customer
      1. if the Customer transfers or disposes of the whole or a substantial part of its business or assets;
      2. if the Customer ceases or changes the nature of its business, suspends a substantial part of the present business operations which they now conduct directly or indirectly;
      3. if at any time control (as defined in section 840 of the Income and Corporation Taxes Act 1988) of the Customer is acquired by any person or group of connected persons (as defined in section 839 of that Act) not having control of the Customer at the date of commencement of the Agreement;
      4. if any material change shall occur in the management, ownership or control of the Customer;
      5. 5 the equivalent of any of the above occurs in relation to the Customer under the jurisdiction to which the Customer is subject.
   5. On termination of the Contract for any reason:
      1. the Customer shall immediately cease to use the Service, shall destroy its passwords and shall (at the Licensor's option) return to the Licensor or destroy any copies of the on- line help files in its possession;
      2. the Customer shall not be entitled to a refund of the Charges or any part of the Charges;
      3. the Licensor shall make available to the Customer a series of CSV and ZIP formatted files of their data, free of charge and within 30 days of termination, if so requested at time of termination. The Licensor may agree, if so requested at time of termination, to provide the Customer data in other structured data formats with such work being undertaken and charged at the Licensor’s daily rate at the time of termination. All outstanding Customer invoices, including those relating to the returning of data, must be paid in full prior to any data being returned by the Licensor. The Customer agrees and acknowledges that the Licensor has no obligation to retain Customer data, and may delete such Customer data, more than 30 days after termination.
      4. any other rights or remedies a party may be entitled to hereunder or at law and any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination shall not be affected;
      5. neither party's obligations under Condition 8 shall terminate but shall continue in full force following the termination of the Contract.
10. Force Majeure
    1. The parties shall not be liable for any breach of their obligations under the Contract resulting from an Event of Force Majeure.
    2. Each of the parties agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
    3. If a default due to an Event of Force Majeure shall continue for more than four weeks then the party not in default shall be entitled to terminate the Contract. The parties shall not have any liability in respect of the termination of the Contract as a result of an Event of Force Majeure.
11. Assignment, sub-licensing and third party rights
    1. The Licensor shall be entitled to delegate any of its obligations under the Contract to any Associate. Any such delegation shall not affect the obligations and liability of the Licensor under the Contract.
    2. Notwithstanding anything to the contrary contained in the Contract, the parties agree and intend that nothing in the Contract shall confer any rights on any third parties.
12. Data Protection
    1. Each of the parties shall in the course of performing its obligations under the Contract comply with the provisions of the Data Protection Act 1998 (the "Act") or, in the case of the Customer, the equivalent laws in the country in which the Customer is established.
    2. The Customer authorises the Licensor to access and make copies of the Customer's data processed using the Service for the purposes of performing its obligations under the Contract and testing the Service.
    3. To the extent that the Licensor's performance of its obligations under the Contract involve the processing of Personal Data (as defined in the Act) on behalf of the Customer, the Customer warrants that the individuals to whom such Personal Data relates consent to their Personal Data being transferred to and processed by the Licensor.
    4. In the course of performing its obligations under the Contract, the Licensor shall:
       1. comply with the provisions of the Seventh Data Protection Act Principle as set out in Part 1 of Schedule 1 to the Act; and
       2. not process any Personal Data except in accordance with the Customer's instructions.
13. Dispute Resolution
    1. Any dispute arising out of or in connection with the Contract shall be determined as provided in this Condition 13.
    2. For the purpose of this Condition 13, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.
    3. After service of the notice of dispute, the following procedure shall be followed by the parties and all periods specified in this Condition 13.3 shall be extendable by mutual agreement):
       1. within two days each party's Management Escalation Contacts shall meet to attempt to settle the dispute;
       2. if the Management Escalation Contacts are unable to reach a settlement within seven days from the date of service of the notice, the Executive Management Escalation Contacts of each of the parties shall meet within the following seven days to attempt to settle the dispute.
    4. Each party represents and warrants that it has the legal power and authority to enter into the Contract.
    5. In the event of the Customer wishing to raise a complaint about any part of the product or service supplied by the Licensor, then the Customer should put their complaint in writing and send it by email to [email protected] or by post to the Licensor's head office address.  The Licensor will not accept complaints in any other format.  All complaints will be handled in accordance with the Licensor's complaints procedure.

       The number of arbitrators shall be one.

       The seat or legal place of arbitration shall be Manchester, England.

       The language used in the arbitral proceedings shall be English.

14. General
    1. The waiver by either party of a breach or default of any of the provisions of the Contract by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions of the Contract or these Conditions nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has or may have under the Contract or these Conditions operate as a waiver of any breach or default by the other party.
    2. Any notice, request, instruction or other document to be given under the Contract or these Conditions shall be delivered or sent by first class post or by facsimile transmission (such facsimile transmission notice to be confirmed by letter posted within 12 hours) to the address or to the facsimile number of the other party set out in the Contract (or such other address or number as may have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery (if sent by post) upon the expiration of 48 hours after posting and (if sent by facsimile transmission) upon the expiration of 12 hours after despatch.
    3. If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of the Contract and all provisions not affected by such invalidity or enforceability shall remain in full force and effect. The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
    4. The Customer acknowledges that in entering into the Contract it has not relied on any warranty, representation, undertaking or agreement other than those contained or referred to in the Contract. The Customer waives any right or remedy it may have to claim damages or rescission for any misrepresentation in respect of any representation not contained in the Contract or for breach of any warranty not contained in the Contract and acknowledges that its only remedies against the Licensor are for breach of contract, provided always that nothing in this Condition 14.4 shall exclude or limit the liability of the Licensor to the Customer in respect of any fraudulent misrepresentation or warranty fraudulently given and upon which the Customer can prove it has placed reliance. Subject to the foregoing, the Contract and its Schedules and the documents referred to herein constitute the entire agreement and understanding between the parties with respect to all the matters which are referred to in the Contract.
    5. For the avoidance of doubt time shall not be of the essence for the performance by the Licensor of any of its obligations hereunder.
    6. The parties agree that nothing in the Contract shall be deemed to create any partnership, joint venture or relationship of employer and employee between them.
15. Modifications to Terms
    1. The Licensor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of the Agreement on the Service. The Customer is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
16. Interpretation
    1. In the Contract the following words and expressions will have the following meanings unless the context otherwise requires:
    2. Any reference in these Conditions to "writing" or cognate expressions includes a reference to e-mail or facsimile transmission.
    3. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
    4. The headings in the Contract are for convenience only and shall not affect its interpretation.
    5. Any reference to the masculine gender includes the feminine and neuter gender and vice versa.
    6. Any reference in these Conditions to a Condition is to one of these Conditions. Any reference to a Schedule is to a Schedule of the Contract.
    7. References to persons in these Conditions can include companies, associations, partnerships and all other legal entities or groups of legal entities.
    8. If the Customer is more than one person, then the liability of such persons shall be joint and several.