Club Terms and Conditions

Application Services Agreement

Clubs using the Tennis Jeannie application agree to the terms set out below.

The Application Services Agreement is made between Jeannie Limited a company registered in England and Wales with Company Number 4453711 whose principal place of business is at 7 Holmbury Avenue, Crowthorne , Berkshire RG45 6TQ, United Kingdom (“We”, “Us”, “Our”) and any Club that has contracted to use the Tennis Jeannie Services (“You”, “Your”) (hereinafter jointly referred to as “Both of Us”).

WHEREAS

A We have developed an application that assists tennis clubs in arranging tournaments and enables players to arrange tennis matches; and

B You wish to use the application, and may require configuration of the application and other services in support of the operation of the application; and

C We are able to offer, and You wish to purchase, application services that will enable You to use the application.

BOTH OF US HEREBYAGREE AS FOLLOWS

1 Definitions.

The following terms have the meanings set forth below whenever they are used in this Agreement:

“Acceptance” means the acceptance by You of configuration of the Application. Acceptance shall be deemed to have occurred in the event of the first of the following:

a) the configured Application has met the acceptance criteria as detailed in the Proposal; or

b) the review period for acceptance as notified by Us in accordance with the Proposal has concluded and You have not notified Us of any failure of the Application to meet the acceptance criteria; or

c) You and/or the Players have commenced live usage of the Application; or

d) if no review period is specified in the applicable Proposal, delivery of the configured Application.

“Application” means Our tennis tournament management system and Partner Functionality as described more fully in the Proposal and including but not limited to Your Tennis Jeannie Club Webpages.

“Application Problem” means the failure of the Application to comply with a reasonable interpretation of the Proposal.

“Application Services” means those services provided by Us in relation to Your access to the Application, including configuration and hosting of the Application and support of the Application as further set out in the Proposal and Annex 1 hereto.

“Club” means Your tennis club as detailed in the Proposal.

“Commencement Date” means the commencement date specified in the Proposal.

“Delivery Date” means the estimated date on which We shall first make available the Application either in whole or in part to You, as set out in the Proposal.

“Flat Fee” means the fee payable by You to Us as detailed in the Proposal for Tournaments and/or Partner Functionality under the flat fee payment method.

“Online Tournament Entry Fee” means the fee payable by each Player directly to Us under the online tournament entry fee payment method when they enter a Tournament online via the Application and as detailed in the Proposal.

“Partner Functionality” means Our ‘Find a Partner’ functionality as described in the Proposal.

“Player” means Your individual Club members authorised to use the Application for the purpose of participating in Tournaments at Your Club and other tennis matches with other Club members, including but not limited to using the Partner Functionality, and monitoring the results of such Tournaments and matches, only.

“Player Fee” means the fee payable by You to Us per Player per Round per Tournament under the player fee payment method or the Online Tournament Entry Fee payment method and as detailed in the Proposal.

“Player List” means the details of the Players We require as part of the initial configuration and ongoing management of the Application and as detailed in the Proposal.

“Proposal” means Our written proposal setting out Our offer to provide the Application and Application Services to You as applicable and including a description of the functionality of the Application, details of Your requirements for the configuration of the Application for Your Club and any Acceptance criteria.

“Round” means a round of matches in a Tournament.

“Services Problem” means the failure of the Application Services to comply with the provisions of this Agreement or the Proposal.

“Set-up Fee” means the fee for configuration of the Application as set out in the Proposal.

“Standard Forms” means the printable standard forms provided by Us via the Application for Your internal Club purposes and which may include but shall not be limited to display board information and fixture lists.

“Super User” means Your nominated user who will be responsible for administration of Your use of the Application including ongoing use, new Player additions and new Tournament set up.

“Third Party Software” means those third party software products required in order to operate the Application.

“Tournament” means a tennis tournament as detailed on Our standard list of tournament types provided by Us to You from time to time. Each Tournament and each Round of a Tournament set up on the Application shall have a stated commencement date.

“Tournament Entry Admin Fee” means the fee payable by You to Us per card transaction, under the Online Tournament Entry Fee payment method, for the processing of on-line payments and as detailed in the Proposal.

“Webpages” means the webpages We create for Your Club when We configure the Application and as described in the Proposal.

2 Agreement Structure

2.1 This Agreement, together with a Proposal signed by Both of Us, shall constitute a binding contract (the “Contract”) for the purchase and supply of Application Services as set out in the applicable Proposal and Annexes to this Agreement. Each signed Proposal together with this Agreement shall form a separate Contract, independent of all other Contracts that might exist between Us and You. In the event of any conflict between the signed Proposal and this Agreement, the Proposal shall take precedence.

2.2 These are the only terms and conditions that apply to Our supply of the Application Services, and take precedence over any additional or conflicting terms that may be printed on any order form or other documentation supplied by You. You hereby agree that the provision of Application Services shall not constitute deemed acceptance of any such additional or conflicting terms and conditions which shall be null and void.

2.3 For the purposes of this Agreement or any Contract electronic mail shall be considered as notification in writing.

3 Configuration of the Application

3.1 We shall provide configuration of the Application as detailed in the Proposal. You may request additional amendments to the configuration of the Application. We may also give notice to You that a change in circumstances prompted by You constitutes a request for modification to the Proposal even though no formal request for modification has been issued by You. In response to such requests We shall supply You with a written proposal including the specification for the work, price and approximate timescales for delivery. Once You have accepted such proposal in writing, it shall be attached to this Agreement and shall be delivered subject to the terms and conditions of this Agreement.

3.2 Initial configuration of Tournaments shall be as detailed in the Proposal and shall be selected by You from Our list of standard Tournaments. In the event that You request the creation of a new type of tournament not included on Our list of standard Tournaments, such request shall be subject to the modification request process detailed in Clause 3.1 above.

3.3 You shall provide Us with the Player List in an electronic file in a format specified by Us for the initial configuration of the Application.

3.4 In the event that You have selected the Partner Functionality You shall provide Us with information reasonably requested by Us about Your Club Player rating system and the rating of individual Players so that We can set up the Partner Functionality for You. Such setting up of the Partner Functionality shall be subject to an additional set-up fee (“Partner Set-up Fee”) as detailed in the Proposal or agreed in writing between Us in accordance with Clause 5.14.

3.5 Customisation of the Standard Forms shall be at Our discretion and You may provide Us with a copy of Your logos and /or trademarks for the purpose of such customisation. We shall use such logos and/or trademarks solely for the purpose of customising the Standard Forms for You and for no other purpose whatsoever.

3.6 Time-scales given in this Agreement, Annex 1 and the Proposal are given in good faith but because of the nature of work undertaken they must be considered to be estimates only. While We shall make reasonable endeavours to maintain the time-scales quoted, meeting such time-scales shall not constitute the essence of the Contract.

4 Training

4.1 When the Application is live We shall provide training for the Super User on the use of the Application at a mutually agreed time. You shall provide Us with the name and contact details of Your Super User.

4.2 Training may be provided via the internet and/or by telephone.

4.3 Any additional training requested by You shall be at our discretion and may be subject to an additional fee which shall be agreed in writing by Both of Us prior to the commencement of any such additional training.

5 Supply of Application Services

5.1 For the duration of this Agreement and subject to the terms and conditions of the Contract, We hereby grant to You and Your Players a personal, non-transferable licence to use the Application hosted by Us in accordance with this Clause 5 for the purposes specified in the Proposal only.

5.2 We agree to host the Application on Our computer facilities or those of Our subcontractors in accordance with the details set out in the Proposal.

5.3 You hereby acknowledge that in hosting the Application and storing the Player List We are acting as a data processor and You are the data controller as defined in the Data Protection Act 1998 (“Act”).

5.4 In hosting the Application in Our capacity as a data processor We agree to comply with the Seventh Data Protection Principle as set out in the Act relating to data security.

5.5 When a Player uses the Application for the first time they are required to register and to supply additional personal information. Upon provision of such additional information We shall create a Player profile (“Profile”) from such information and the information provided on the Player List. We shall be the owner of such Profiles and We hereby acknowledge that in creating and maintaining Profiles We are acting as a data controller as defined in the Act and We agree to comply with the Eight Principles of the Act.

5.6 You hereby acknowledge that You, the Super User and Your other authorised representatives will be able to view the Profiles via the Application administrative functions. You hereby agree to take reasonable security measures in accordance with the Seventh Principle of the Act with respect to the access to the Profiles by You, the Super User and Your other authorised representatives.

5.7 We reserve the right to move or suspend the Application for short periods of time to allow Us to carry out maintenance or repair to Our servers or to implement improvements to the Application. We shall give You 7 (seven) days notice of planned maintenance by email. Please be aware that We occasionally perform emergency maintenance or repairs and on these occasions it will not be possible to notify You in advance.

5.8 In the event that You become aware of an Application Problem or a Services Problem You shall notify Us as soon as You become aware of such Problem by telephone or email using the process set out in Annex 1 to this Agreement.

5.9 We shall use Our reasonable endeavours to respond to Your notification of Application Problems and Service Problems and to resolve them in accordance with the provisions of Annex 1 to this Agreement.

5.10 In the event that a Player has a problem using the Application they may contact Us directly via the online contact form (“Contact”). We shall only be responsible for responding to Contacts which concern Application usage problems. In the event that a Player sends Us a Contact with a query or problem relating to another Player, a Tournament or other similar Club issue We shall forward such Contact directly to You and it is Your responsibility to respond to such Contacts.

5.11 The Administrative Functions enable You to amend the Player List and add and deactivate Players. At Your reasonable request and Our discretion We may amend the Player List and add and/ or deactivate Players for You no more than once per month.

5.12 We reserve the right to place advertisements, promotions or other similar revenue streams (“Adverts”) from selected third parties on the Webpages. We shall use Our reasonable endeavours to ensure such Adverts are, in Our reasonable opinion, relevant and non-detrimental to Your business.

5.13 From time to time We may release updates and improvements to the Application and such updates and improvements shall be automatically implemented during routine and planned maintenance and We shall notify the Super User of any such updates and improvements. In the event that We develop optional new services and/or functionality which are subject to an additional fee We may contact You to offer You such services and functionality.

5.14 At any time after the Commencement Date You may request additions to the Application Services including but not limited to Partner Functionality. In response to such requests We shall supply You with a written proposal including the specification for the services, their duration and their price. Once You have accepted such proposal in writing, it shall be attached to this Agreement and shall be delivered subject to the terms and conditions of this Agreement.

5.15 The payment method selected by You shall be detailed in the Proposal. For the sake of clarity, Partner Functionality is only payable via the Flat Fee payment method.

6 Application Service Restrictions.

6.1 You agree that:

(a) You and Your Players may use the Application via the Application Services and have no rights to download, copy or install the Application or any part thereof onto any media or computer system belonging to You or to any third party;

(b) You will not reverse engineer, decompile, or disassemble the Application, except to the extent that We cannot prohibit such acts by the applicable law, and neither will You permit any Player or Your authorised personnel to do so;

(c) You will not sell, assign, license, lease, rent, loan, lend, transmit, network, or otherwise distribute, transfer or make available the Application in any manner to third parties other than Players and/or Your authorised personnel save as expressly provided in Clause 5.1;

(d) You are expressly prohibited from adapting, modifying, merging, revising, improving, translating, upgrading, enhancing and creating derivative works of the Application for any purpose including error correction or any other type of maintenance, and neither will You permit any Player or Your authorised personnel to do so;

(e) You will maintain and not remove any notices placed on the Application by Us or Our subcontractors;

(f) You will take security measures sufficient to reasonably safeguard the Application from theft or from access by persons other than Our or Your authorised personnel, Players or agents; and

(g) You will keep the Application free and clear of all claims, liens and encumbrances.

6.2 The Application includes functionality permitting You and the Super User to perform certain administration and configuration tasks (the “Administrative Functions”). You undertake to keep all usernames, passwords and other access details relating to the Administrative Functions confidential and You agree to indemnify Us from any loss or damage arising from Your and/or Super User’s failure to do so.

7 Your Co-operation.

7.1 We shall notify You in the event that We become aware that a Player is misusing the Application or sending inappropriate messages via the Application and We retain the right to deactivate a Player at Our discretion but shall not unreasonably do so. For the sake of clarity, We are not responsible for policing the Webpages and it is Your responsibility to take any action You believe is appropriate with respect to a Player misusing the Application.

7.2 You hereby acknowledge that You are responsible for:

(a) verifying the identity and details of Players on the Player List and any new Players You add, or request Us to add, to the Player List;

(b) creating accounts for new Players on an ongoing basis;

(d) resolving Player disputes;

(e) allocating Player ratings and Players to boxes;

(f) the accuracy of Tournament information and Tournament results; and

(g) the content posted to Your Webpages by You or Players.

7.3 You hereby agree to include in any promotional material or other similar information regarding the Application a notification to Your Club members that any Player under the age of 14 (fourteen) years of age (“Junior Player”) belonging to the Club who wishes to register to use the Application in accordance with Clause 5.5, including but not limited to registering for a Tournament, shall require parental consent. We shall use Our reasonable endeavours to verify such parental consent in accordance with Our verification procedures.

7.4 You shall provide co-operation and support to Us in Our efforts to implement and configure the Application and to provide the Application Services. Such co-operation and support shall include, but not be limited to:

(a) a reasonable level of responsiveness to Our requirements and communications;

(b) the timely transmittal and release to Us of appropriate and accurate documentation and information;

(d) the making available of facilities including but not limited to computer facilities, desk space, telephone access and parking when and to the extent as is reasonably requested by Us; and

(e) the making available of competent personnel to assist Us when and to the extent as is reasonably requested by Us.

7.5 You agree
that if You do not perform Your obligations under the Contract and such non-performance affects Our ability to perform, We shall not be considered in default under the Contract to the extent so affected, and You shall remain fully obligated to pay Us as provided in the Contract regardless of any failure to perform any services so affected.

8 Personnel.

8.1 You shall advise Us of all rules, regulations and practices with which Our employees should comply while on Your premises. Our personnel shall use reasonable endeavours to comply with such rules and regulations whenever they are on Your premises. You shall take reasonable precautions to ensure the health and safety of Our staff, employees, agents and sub-contractors while they are on Your premises.

8.2 Unless expressly agreed in writing by the parties Our personnel shall not hold themselves out as Your agents and shall not have any authority to create any obligations on Your behalf.

9 Player Fee Payment Method

9.1 In the event You have selected the Player Fee payment method the provisions of this Clause 9 shall apply.

9.2 We may invoice the Player Fees two weeks after the commencement of each Round of the applicable Tournament.

9.3 The Player Fee is payable by You for each Player entered into a Tournament regardless of whether such Player subsequently withdraws from the Tournament after the Tournament has commenced or otherwise fails to complete the Tournament.

10 Online Tournament Entry Fee Payment Method

10.1 In the event that You have selected the Online Tournament Entry Fee payment method or a combination of the Online Tournament Entry Fee and Player Fee payment methods the provisions of this Clause 10 shall apply.

10.2 You shall advise Us of the amount of the Online Tournament Entry Fee and such amount shall be detailed in the Proposal and may be amended by You from time to time.

10.3 Each Player shall pay the Online Tournament Entry Fee directly to Us via the Application when they enter a Tournament online.

10.4 The Player Fee and Tournament Entry Admin Fee is payable by You for each Player entered into a Tournament regardless of whether such Player subsequently withdraws from the Tournament after the Tournament has commenced or otherwise fails to complete the Tournament.

10.5 Two weeks after the commencement of each Round of a Tournament We shall send You a statement detailing the Online Tournament Entry Fees, Players Fees and Tournament Entry Admin Fees for such Tournament and shall invoice You for such Players Fees and Tournament Entry Admin Fees. Upon receipt of Our statement, You shall invoice Us for the applicable Online Tournament Entry Fees.

10.6 Except as provided by Clause 10.7 We shall pay Your invoices for the Online Tournament Entry Fees less the Players Fees and the Tournament Entry Admin Fees, as invoiced by Us in accordance with Clause 10.5, within 14 (fourteen) days of the date of Your invoice and We hereby acknowledge that in receiving Online Tournament Entry Fees from the Players We are acting as Your fiduciary agent and hold such payment on trust for You.

10.7 In the event that the value of Our invoice for the Player Fees and Tournament Entry Admin Fees is greater than the value of Your corresponding invoice for the Online Tournament Entry Fees, You shall pay Us the difference in the invoice values within 14 (fourteen) days of the date of Our applicable invoice.

11 Flat Fee Payment Method

11.1 In the event You have selected the Flat Fee payment method, the provisions of this Clause 11 shall apply.

11.2 The Flat Fee shall be payable in accordance with the payment terms detailed in the Proposal and You shall advise Us of Your Player numbers for the purposes of calculating the Flat Fee.

11.3 Both of Us shall review the Flat Fee on an annual basis (“Annual Review”) to take account of Your changing Player numbers and/or Application functionality requested by You.

11.4 In the event that it becomes apparent to Us that the Player numbers You have advised to Us in accordance with Clause 11.2 or at the Annual Review have been exceeded by more than 20%, We may request an immediate review of the Flat Fee and reserve the right to restrict use of the Application to the number of Players advised by You in accordance with Clause 11.2 or at the last Annual Review.

12 Other Fees & Payment.

12.1 We may invoice the Set-up Fee upon Acceptance. We may invoice the Partner Set-up Fee upon completion of set-up of the Partner Functionality as notified to You by Us.

12.2 You shall pay all Our invoices within 14 (fourteen) days of the date of the invoice unless otherwise agreed in writing by Us.

12.3 You shall be liable for any other agreed upon fees, any national, European Union, value added, sales, excise, state, local or other taxes or customs duties applicable. You shall pay an interest charge on any undisputed sum outstanding to Us at the rate of 5% above Barclays Bank Sterling base rate as at the date of invoice. You shall notify Us in writing within 10 days of receipt of an invoice that the invoice is in dispute.

12.4 We may increase the Player Fee and/or Tournament Entry Admin Fee set out in the Proposal not more than once in any twelve month period, and shall give You at least 30 (thirty) days written notice of any such increase. You may give notice to terminate the Contract without penalty within fifteen (15) days of receipt of such written notice from Us. If We do not receive written notice within fifteen (15) days You are deemed to have agreed to the amendment to the Fees.

12.5 If payment of the Fees or any part thereof is overdue then unless You have notified Us in writing that such payment is in dispute within 10 days of the receipt of the corresponding invoice We may at Our option:

(a) suspend all work in progress in respect of configuration of the Application and/or provision of the Application Services until such payment is made in which case any expenses to Us occasioned by such suspension and subsequent resumption shall be added to the consideration and the project time-scales shall be delayed accordingly; or

(b) treat such as a material breach and terminate the Contract in accordance with Clause 12.2(a).

13 Warranties.

13.1 Subject to the exceptions set out below and the limitations upon Our liability in Clause 11, We warrant that the Application and Our modifications to configure the Application will substantially comply with the Proposal.

13.2 Subject to the exceptions set out below and the limitations upon Our liability in Clause 11, We warrant that the Application Services will be carried out with reasonable skill and care by personnel whose qualifications and experience will be appropriate for the tasks to which they are allocated.

13.3 The warranty set out in Clause 10.1 does not apply to conditions resulting from improper use, external causes, including service or modifications not performed by Us, or operation outside the specified environmental parameters or from use other than as permitted under the Contract. We do not warrant that the operation of the Application will be uninterrupted or error free.

13.4 Save as expressly provided in Clause 10.1 and Clause 10.2 of this Agreement, We specifically exclude but without limitation all other conditions, warranties, representations or other terms relating to the Contract hereto including any conditions, warranties, representations or other terms that might otherwise be implied or incorporated into the Contract, such as those of satisfactory quality, fitness for a particular or any purpose, or ability to achieve any particular result.

13.5 You hereby agree that Your sole remedy in respect of any non-conformance with any warranty in this Agreement is that We will remedy such non-conformance (either by Ourselves or through a third party) and if in Our reasonable opinion, We are unable to remedy such non-conformance then We will refund the applicable Fees in respect of the non-conforming software or services, if paid, whereupon the Contract shall immediately terminate.

13.6 You must promptly notify Us in writing of any breach of the above warranties in order to benefit from the remedy stated above in Clause 10.5 and in the event of a breach of the warranty set out in Clause 10.2 must do so within six months of the provision of the Application Services at issue. You shall provide all information as may be deemed necessary by Us to assist Us in resolving such breach.

14 Limitation of Liability.

14.1 Nothing in this Agreement shall exclude or limit Our liability for (i) fraud or other criminal act, (ii) personal injury or death caused by the negligence of Our employees in connection with the performance of their duties hereunder or by defects in any Application supplied pursuant to this Agreement, or (iii) any other liability that cannot be excluded by law.

14.2 Subject to Clause 11.1, in no event will We be liable under the Contract for any damages resulting from: (i) loss of, damage to or corruption of data, (ii) loss of use, (iii) lost profits, (iv) loss of anticipated savings, (v) loss of reputation or goodwill, and/or (vi) any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen.

14.3 Except as provided in Clause 11.1 and in Clause 11.2 Our maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 125% of the aggregate of the Fees paid and payable by You in respect of the provision of the software or service that is the subject of Your claim during the twelve (12) months prior to such claim arising.

14.4 We hereby exclude all liability that We have not expressly accepted in this Agreement. These limitations will apply regardless of the form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of this Clause 11 “We” includes Our employees, sub-contractors, licensors and suppliers who shall therefore have the benefit of the limits and exclusions of liability set out in this Clause in terms of the Contracts (Rights of Third Parties) Act 1999.

14.5 No action, regardless of form, arising out of transactions occurring under or contemplated under the Contract may be brought by either party more than two (2) years after the cause of action has accrued.

14.6 Save as provided in Clause 11.7 You shall have no remedy in respect of any representation (whether written or oral) made to you upon which You relied in entering into the Contract (“Misrepresentation) and We shall have no liability to You other than pursuant to the express terms of this Agreement.

14.7 Nothing in the Contract shall exclude or limit Our liability for any Misrepresentation made by Us fraudulently.

15 Duration & Termination.

15.1 This Agreement and the Proposal shall become effective on the date of signature and shall continue unless and until terminated in accordance with the provisions of Clause 9.8(b), Clause 10.5, Clause 12.2 and/or Clause 13.4(c), or in accordance with the Proposal

15.2 Either party (“the Initiating Party”) may forthwith terminate Contract at any time:

(a) on giving written notice to the other party if the other party commits any material breach of any term of the Contract and in the case of a breach which is reasonably capable of remedy fails to remedy that breach to the reasonable satisfaction of the Initiating Party within thirty (30) days of a written request to remedy the same; or

(b) if the other party shall have a receiver or administrative receiver appointed over it or any of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bone fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it) or a court of competent jurisdiction shall make an order to that effect or if the other party shall become subject to an administration order or shall enter into any voluntary arrangement with its creditors or shall cease or threaten to cease to carry on its business or if any substantially similar event shall take place under the laws of another jurisdiction; or

(c) on giving 90 (ninety) days written notice, such notice to be given no sooner than 9 (nine) months after the Commencement Date.

15.3 The expiry of the Contract or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of either of the parties accrued prior to such termination.

16 Intellectual Property.

16.1 We are the owner or licensee of the patent, copyright, trade secrets, trademarks, design rights and any other intellectual property rights which subsist in the Application and the Profiles with the exception of trademarks, trade names, brand names or other intellectual property owned by You and supplied by You to Us for the purposes of configuration of the Application. Title to the Application shall remain vested in Us or Our licensors. For the avoidance of doubt title and all intellectual property rights to any design, modification, configuration, implementation, new software, new protocol, new interface, enhancement, update, derivative works, revised screen text or any other items that We create shall remain vested in Us or Our licensors. Any rights not expressly granted herein are reserved to Us.

16.2 For the sake of clarity, We own all intellectual property rights which subsist in the Profiles and although You have visibility of the information contained in the Profiles You may only use the information which is additional to the Player List in accordance with the terms of the Contract and for no other purpose whatsoever.

16.3 Subject to the provisions of this Clause 13, We shall defend at Our own expense any claim brought against You alleging that the normal use of the Application infringes a patent, copyright belonging to a third party ("Intellectual Property Claim") and We shall pay all damages awarded or agreed to be paid to any third party in settlement of an Intellectual Property Claim provided that You:

(a) promptly furnish Us with written notice of the Intellectual Property Claim upon becoming aware of the same;

(b) make no admissions or settlements without Our prior written consent;

(c) act in accordance with Our reasonable instructions and provide Us with reasonable assistance in respect of the Intellectual Property Claim; and

(d) give to Us the sole authority to defend or settle the Intellectual Property Claim.

16.4 If in Our reasonable opinion the Application is or may become the subject of an Intellectual Property Claim then We shall either:

(a) obtain for You the right to continue using the Application;

(b) replace or modify the Application so that it becomes non-infringing; or

(c) if such remedies in (a) and/or (b) above are not in Our opinion reasonably available, then You shall cease to use the Application and We shall refund to You the corresponding portion of the Fees, if paid, as normally depreciated and the Contract shall then terminate.

16.5 We shall reimburse You Your reasonable costs incurred in complying with the provisions of Clause 13.3.

16.6 We shall have no liability for any Intellectual Property Claim resulting from the combination of the Application with other applications that were neither supplied nor combined by Us or if the same results from any breach of Your obligations under this Agreement.

16.7 This Clause 16 states Our entire obligation and liability and Your sole remedy in respect of any infringement or alleged infringement of any intellectual property rights arising from Your use of the Application. We hereby exclude all other obligations and liabilities in relation to infringement or alleged infringement of the intellectual property rights of any person.

17 Confidentiality.

17.1 Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to Our or Your business affairs or activities and which: (i) has been marked as confidential or proprietary, (ii) has been identified orally or in writing as being of a confidential nature, or (iii) may reasonably be supposed to be confidential in the circumstances.

17.2 Each party undertakes that for a period of five years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the Contract. Each party hereby agrees that it shall treat the other's Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this clause.

17.3 The provisions of Clause 14.2 shall not apply to:

(a) any information in the public domain otherwise than by breach of this Agreement;

(b) information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party;

(d) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.

17.4 We may publicise Our involvement with You with Your prior written consent such consent not to be unreasonably withheld or delayed.

17.5 If the Contract is terminated, each party shall, at the other party’s option, return or destroy all Confidential Information of the other party.

18 Assignment.

You may not assign this Agreement or otherwise transfer any rights or obligations under the Contract except with Our prior written consent.

19 Force Majeure.

Neither party is responsible for failure to fulfil its obligations hereunder due to causes beyond its reasonable control that directly or indirectly delay or prevent its timely performance hereunder. Dates or times by which each party is required to render performance under the Contract shall be postponed automatically to the extent that the party is delayed or prevented from meeting them by such causes.

20 Notices.

All notices made pursuant to the Contract must be made in writing. Any written notice to be given or made pursuant to the provisions of the Contract shall be sent postage prepaid by registered or recorded mail or reputable courier service, addressed to the other party's address stated above and shall be marked for the attention of “The Company Secretary”. Unless otherwise provided in the Contract, all notices shall be deemed as given on the day of their receipt by the receiving party.

21 Entire Agreement.

The Contract including its Annexes constitutes the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous representations, agreements and other communications between the parties, both oral and written. The Contract shall prevail notwithstanding any variance with the terms and conditions of any order or purchase order submitted by You.

22 Dispute Resolution, Law & Jurisdiction.

22.1 In the event of any dispute arising under the Contract the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed by the parties, the mediator will be appointed by CEDR. No party may commence court proceedings in respect of any dispute arising out of the Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

22.2 Subject to the provisions of Clause 19.1 each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any disputes of whatever nature arising out of or relating to the Contract.

22.3 Notwithstanding the provisions of Clause 19.1, nothing in the Contract shall limit either party’s right to seek injunctive relief.

22.4 The Contract shall be governed by English law.

23 Survival.

The following clauses shall continue to be in effect after the termination or expiration of this Agreement: 1,9, 10, 11, 12, 14, 16, 17, 20 - 24 inclusive.

24 General.

If any provision of the Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions of the Contract shall not be affected thereby, and that the remainder of the Contract shall remain valid and enforceable. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof or the exercise of any such power or right under the Contract. The Contract may not be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of Us and You. A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract except as explicitly provided by Clause 11.4 herein but this does not affect any right or remedy of a third party that exists or is available apart from the Act.