TERMS AND CONDITIONS OF SERVICE GEENI

Service Geeni (Subscription) Conditions
These Conditions apply to the licence of the Software and the Client’s use of the Services on a subscription basis.

1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply to the Agreement and these Conditions.
Additional Fees: fees payable for additional services requested by the Client.
Agreement: the agreement between the Supplier and the Client for the licence of the Software and the supply of the Services, incorporating these conditions.
Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Client: the person, firm or Supplier licensing the Software from the Supplier pursuant to the Agreement.
Client Data: the data inputted by the Client, Authorised Users, or the Supplier on the Client’s behalf, for the purpose of using the Services or facilitating the Client’s use of the Services.
Fees: the Initial Fee, the Subscription Fees and any Additional Fees.
Initial Fee: the fee payable by the Client as identified in the Agreement for the initial implementation of the Services.
Initial Term: the initial minimum term of the Agreement, if any, as set out in the Agreement.
Maintenance Release: a release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
Minimum Specification: the minimum specification for the Client’s hardware and network connections to enable the Client to access the Services, as contained in the Appendix or as notified in writing by the Supplier from time to time.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day between 2nd January and 23rd December and 9.30 a.m. to 1.00 p.m. local time, each Business Day between 24th December and 1st January (inclusive).
Renewal Date: the date on which the Agreement will automatically renew in accordance with clause 13.1.
Services: the subscription services provided by the Supplier to the Client under the Agreement.
Software: the online software applications identified in the Agreement, provided by the Supplier as part of the Services, together with any software supplied by the Supplier to allow or facilitate the Client to access or integrate with such applications (in each case together with any Maintenance Release).
Subscription Fees: the subscription fees payable by the Client to the Supplier for the User Subscriptions, as set out in the Agreement.
Supplier: Key Computer Applications Limited (Supplier no. 2542478) whose registered office is at Cavan House, Ellesmere Street, Leigh, Lancashire WN7 4LQ.
User Subscriptions: the user subscriptions purchased from the Supplier by the Client which entitles Authorised Users to access and use the Services in accordance with the Agreement.
Virus: anything or device (including any software, code, file or programme) 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 programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme 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 person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.4 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.5 These conditions shall apply to and be incorporated into the Agreement
1.6 No variation to the Agreement or these conditions shall be binding unless agreed in writing by an authorised representation of the Supplier.
1.7 The Supplier shall be entitled to amend these conditions on giving to the Client not less than 30 days’ notice in writing of the proposed changes.

2. Licence
2.1 Subject to the Client paying the Initial Fee (if any) and the Subscription Fees, the Supplier grants to the Client a non-exclusive, non-transferable licence to permit the Authorised Users to use the Services and the Software for the duration of the Agreement, on the terms and conditions set out herein.
2.2 For the purposes of clause 2.1, “use” of the Services and the Software shall be for workforce and business management in the normal operation of the Client’s business.
2.3 The Client shall not access, store, distribute or transmit any Virus or any material during the course of its use of the Services and the Software that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity, or
(c) is otherwise illegal or causes damage or injury to any person or property, and the Supplier reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
2.4 The Client shall not:
(a) except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and
2.5 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.6 The Supplier will provide the Client with any Maintenance Release generally made available to its Clients. Subject to clause 2.8 below, the Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Services and the Software.
2.7 The Client accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Services and the Software have not been developed to meet the individual requirements of the Client.
2.8 The Supplier reserves the right to make changes to the Services and the Software to conform with any applicable statutory requirements or which do not materially affect their functionality.

3. USER SUBSCRIPTIONS
3.1 In relation to the Authorised Users, the Client undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of its current Authorised Users and provide such list to the Supplier upon request; and
(e) it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User.
3.2 The Client may, from time to time, purchase additional User Subscriptions via the Supplier’s website or by contacting the Supplier directly.
3.3 Any reduction in the number of User Subscriptions can only be made either:
(a) with the written consent of the Company; or
(b) by the Client giving at least 60 days’ notice in writing, such notice to expire at the end of the Initial Term or Renewal Date.

4. SERVICES
4.1 The Supplier shall provide the Services to the Client on and subject to the terms of the Agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, save for essential maintenance and any previously notified planned maintenance.
4.3 The Supplier will provide the Client with the Supplier’s standard support services during Normal Business Hours. The Client may purchase enhanced support services separately at the Supplier’s then standard rate.
4.4 The Supplier will provide such training to Authorised Users as is set out in the Agreement at no extra cost. Additional training will need to be agreed with the Supplier and will be chargeable at the Supplier’s then standard rate for training or as agreed.
4.5 Any changes to the Software or the development of additional features requested by the Client will need to be agreed in writing between the Supplier and the Client and will be chargeable at the Supplier’s then standard rate for development services or as agreed.
4.6 The Agreement is for the Services only and does not include the provision of any hardware. If the Supplier is to supply hardware, it will be subject to a separate agreement and the Supplier’s standard terms and conditions of sale.
4.7 The Client shall be responsible for ensuring it has the requisite hardware and network connections (both office-based and mobile) to access the Services.

5. CLIENT DATA
5.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data. For the avoidance of doubt, the Supplier shall have no right or interest in the Client Data.
5.2 In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.
5.3 The Supplier shall use commercially reasonable endeavours to maintain the confidentiality of the Client’s Data and shall not disclose or use this without the Client’s express consent.
5.4 If the Supplier processes any personal data on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Client acknowledges and agrees that the personal data may be transferred or stored outside the EEA in order to carry out the Services and the Supplier’s other obligations under this agreement;
(b) the Client shall ensure that the Client is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf;
(c) the Client shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Client from time to time; and
(e) 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.

6. SUPPLIER’S OBLIGATIONS
6.1 Provided the Client has complied with its obligations, the Supplier shall make the Services available to the Client and its Authorised Users via the internet.
6.2 The Supplier undertakes that the Services will be performed with reasonable skill and care.
6.3 Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, and/or the information obtained by the Client through the Services will meet the Client’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7. CLIENT’S OBLIGATIONS
7.1 The Client shall:
(a) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(b) ensure that its Authorised Users use the Services in accordance with the Agreement and shall be responsible for any Authorised User’s breach thereof;
(c) ensure that its network, systems and hardware (including in each case that used by the Client’s drivers) are at all times secure and comply with the Minimum Specification and any other any relevant specifications provided by the Supplier in writing from time to time;
(d) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet; and
(e) ensure that all Authorised Users are available for training on the agreed dates for training.

8. CHARGES AND PAYMENT
8.1 The Client shall pay to the Supplier the Initial Fee and the Subscription Fees in accordance with this clause 8 and the Agreement.
8.2 Subscription Fees are paid monthly in advance by direct debit, Additional Fees shall be paid monthly in arrears.
8.3 The Supplier shall send a VAT invoice schedule to the Client by email advising of the Subscription Fees and Additional Fees payable.
8.4 If the Supplier has not received payment on or before the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while sums remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate of 8% commencing on the due date and continuing until fully paid, whether before or after judgment.
8.5 All amounts and fees stated or referred to in this agreement:
(a) unless agreed otherwise in writing, shall be paid by direct debit;
(b) shall be payable in pounds sterling;
(c) are non-cancellable and non-refundable;
(d) are exclusive of value-added tax, which shall be added at the appropriate rate.
8.6 The Supplier shall be entitled to increase the Subscription Fees on any Renewal Date by giving not less than 90 days’ notice in writing to the Client of the proposed change.

9. PROPRIETARY RIGHTS
9.1 The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Software. Except as expressly stated herein, the Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services and/or the Software.
9.2 The Supplier confirms that it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

10. CONFIDENTIALITY
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement.
10.2 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 the Agreement.
10.3 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 the Agreement.
10.4 The Client acknowledges that details of the Services and the Software, and the results of any performance tests of the Services and the Software, constitute the Supplier’s Confidential Information.
10.5 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
10.6 This clause 10 shall survive termination of the Agreement, however arising.

11. INDEMNITY
11.1 The Client shall defend, indemnify and hold harmless the Supplier 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 Client’s use of the Services otherwise than in accordance with these conditions.
11.2 The Supplier shall defend the Client, its officers, directors and employees against any claim that the Services infringes any copyright, trademark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, on the condition that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim under clause 11.2, the Supplier may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay damages or other additional costs to the Client.
11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Client’s use of the Services in a manner contrary to the instructions given to the Client by the Supplier; or
(c) the Client’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
11.5 The foregoing and clause 12.5(a) state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.

12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
(a) arising under or in connection with the Agreement;
(b) in respect of any use made by the Client of the Services or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
12.2 Except as expressly and specifically provided in the Agreement:
(a) 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 agreement; and
(b) the Services are provided to the Client on an “as is” basis.
12.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
12.4 Subject to clause 12.3, the Supplier shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) any indirect or consequential loss.
12.5 Subject to clause 12.3:
(a) the Supplier’s total aggregate liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 125% of the total Fees paid for by the Client during the 12 months immediately preceding the date on which the claim arose; and
(b) the Supplier shall be under no liability if the total of any sums then due from the Client to the Supplier pursuant to the Agreement has not been paid in full.
12.6 The Service Level Arrangements in clause 14 shall be the Client’s full and exclusive right and remedy in respect of the non-performance or unavailability of the Services.

13. TERM AND TERMINATION
13.1 The Agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Commencement Date and shall continue for the Initial Term and on expiry of the Initial Term shall automatically renew for successive periods equal to the Initial Term (each being a “Renewal Period”) unless and until either party gives the other party no less than 60 days’ written notice of termination (such notice to expire on or before the end of the Initial Term or the then current Renewal Period), in which case the Agreement shall terminate upon the expiry of such notice.
13.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Client if:
(a) the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default for 14 days or more;
(b) the Client commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the Client repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
(d) the Client 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 ;
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Client other than for the sole purpose of a scheme for a solvent amalgamation of the Client with one or more other companies or the solvent reconstruction of the Client;
(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Client;
(g) a receiver or administrative receiver is appointed over the assets of the Client;
(h) the Client, being an individual, is subject to a bankruptcy petition or order;
(i) any event occurs, or proceeding is taken, with respect to the Client in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(d) to clause 13.2 (h) (inclusive);
13.3 On termination of the Agreement for any reason:
(a) all licences granted under the Agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party;
(c) the Supplier may destroy or otherwise dispose of any of the Client Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of the Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 14 days of its receipt of such a written request, provided that the Client pays its reasonable fees for doing so and at that time, it has paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination);
(d) the Client shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of any Software then in the possession or control of the Client and, in the case of destruction, certify that it has done so; 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 Agreement which existed at or before the date of termination shall not be affected or prejudiced.

14. SERVICE LEVEL ARRANGEMENTS
14.1 The Supplier shall use its reasonable endeavours to provide 99% uptime service availability of the Services (“Uptime Service Level”). This availability refers to access to the Services. The Client is responsible for its own internet access. Availability does not include maintenance outside of Normal Business Hours of which the Supplier has given at least 48 hours’ notice, Client-caused or third party-caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 15.
14.2 Availability measurement shall be carried out by the Supplier and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. The Supplier shall keep and shall send to the Client, on request, full records of its availability measurement activities under this agreement.
14.3 If availability falls below the Uptime Service Level (as defined in paragraph 14.1 above) in a given calendar month (“Service Delivery Failure”), the Supplier shall credit the Client’s account by an amount calculated as the product of the total cumulative downtime (expressed as a percentage of the total possible uptime minutes in the month concerned) and the total Subscription Fees paid for that month (“Service Credit”).
14.4 A Service Credit shall not be payable unless the Client requests it within 20 Business Days of the service-affecting event(s). The maximum Service Credit allowable in a given month is limited to an amount equal to the total Subscription Fees paid or payable by the Client for that month.
14.5 The Client acknowledges and agrees that the terms of this paragraph 14 relating to Service Credits constitute a genuine pre-estimate of the loss or damage that the Client would suffer as a result of the Supplier’s Service Delivery Failure.

15. FORCE MAJEURE
The Supplier shall have no liability to the Client under the Agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, failure of a third party’s equipment or service provision, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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, provided that the Client is notified of such an event and its expected duration.

16. SEVERANCE
16.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

17. ENTIRE AGREEMENT
17.1 The Agreement, and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

18. ASSIGNMENT
18.1 The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

19. THIRD-PARTY RIGHTS
The Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

20. GOVERNING LAW
The Agreement 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 the law of England and Wales.

Service Geeni is a division of Key Computer Applications Ltd
Key Computer Applications Ltd is a company registered in England and Wales Reg No: 02542478 VAT No: 638740810
Registered Office address: Cavan House, Ellesmere Street, Leigh, Greater Manchester, WN7 4LQ.