OPENASSET LTD SOFTWARE SUBSCRIPTION TERMS AND CONDITIONS

OPENASSET SOFTWARE SUBSCRIPTION
TERMS AND CONDITIONS

By and between Axomic Ltd, a company registered in England and Wales with registered Company Number 4582960, whose registered office is at 2nd Floor, 4 Tabernacle Street, London, EC2A 4LU (“Our”, “We” or “Us”) and the company indicated on the Order (“You” or “Your”) (each a “Party”
and together the “Parties”).

1: DEFINITIONS

“Act” means the General Data Protection Regulation (GDPR) (EU) 2016/679;

“Acquiring Party” means the Party receiving Confidential Information concerning the Disclosing Party;

“Additional Fees” means any fees set out as payable by You in the Order;

“Additional Support Charges” means the fees payable by You at Our then current standard rates in relation to support services provided by Us in accordance with Clause 9.3.3, and any additional services that We agree to provide to You;

“Address” means the installation address as set out on the Order for On-Premise software;

“Agreement” means these terms and conditions together with the Order;

“Charges” means the Licence Fees, the Additional Fees and the Additional Support Charges;

“Cloud” means the Software when installed on hardware provisioned and managed by Us;

“Confidential Information” means, the terms and subject matter of the Agreement and in relation to the Disclosing Party, information (in any form) belonging or relating to it, its associated companies, its or their business, clients, customers, plans, affairs or activities, which information is confidential to the
Disclosing Party, its associated companies, clients or customers (as the case may be), including without limitation Stored Content, the Software, Help Site and Specification and any information which the Acquiring Party has been informed is confidential or which it might reasonably expect would be
confidential;

“Disclosing Party” means the Party disclosing its Confidential Information;

“Effective Date” means the date on and from which the Agreement is effective;

“Force Majeure” means an event beyond the reasonable control of the Parties having exercised reasonable endeavours to mitigate the effect of the same;

“Help Site” means Our manual, support information and help site made available by Us at https://success.openasset.com;

“Initial Term” means a one year period on and from the Effective Date;

“Intellectual Property” means all intellectual property rights including without limitation, patents,
registered designs, trade marks and trade names (whether registered or not), copyright, database rights, design rights, and all similar rights and any application or right to apply for registration of any such right, whether such rights exist anywhere in the world now or in the future;

“Latest Release” means the most recent Release of the Software;

“Licence Commencement Date” means the earlier of (a) the date 30 days after the Effective Date; and (b) the date on which the Software is installed or activated;

“Licence Fee” means the fees payable by You set out in the Order, in return for the grant of a licence to use the Software and receive the Support Services from time to time;

“On-Premise” means the Software when installed on hardware provisioned and managed by You;

“Order” means the order form entered into between the Parties which incorporates these Terms;

“Procedures” means procedures set out in the Help Site to be followed by You and Your Users in respect of the Support Services and/or such other procedures as We may deem reasonably necessary from time to time in order for Us to effectively carry out Our obligations under this Agreement as further set out on the Website from time to time;

“Release” means each version of the Software released by Us;

“Release Date” means the date of general availability of each Latest Release;

“Renewal Date” means the date one year on and from the Effective Date and yearly periods thereafter during the term of this Agreement;

“Software” means the latest object code version of the software programs (including any Updates and Releases) set out in the Order;

“Specification” means the latest description of the Software as published on the Website from time to time;

“Subsequent Term” means one year;

“Stored Content” means files (such as images or videos), text, metadata or any other data stored on the Software;

“Support Level” means the level of support provided by Us in respect of the Support Services as selected in the Order;

“Support Services” means the support services provided by Us in respect of the Software as set out in this Agreement;

“Term” means the term of this Agreement as determined in accordance with Clauses 2.1 and 2.2;

“Terms” means Clauses 1 to 18;

“Updates” means bug fixes and patches made by Us to the Software from time to time but excluding Releases;

“Users” means Your officers, employees, agents and contractors licensed to use the Software as informed to Us by You in accordance with Clauses 4 and 5;

“Warranty Period” means the period whilst they are using the Latest Release following delivery of the
Software; and “Website” means the website available at https://axomic.com or such other website that We make available to You from time to time.

2: TERM

2.1: The Agreement is effective on and from the Effective Date and shall continue for the Initial Term, unless earlier terminated in accordance with the Terms of this Agreement.
2.2: At the end of the Initial Term, subject to earlier termination in accordance with Clause 2.3, this Agreement will renew automatically and continue, unless earlier terminated in accordance with
the Terms of this Agreement, for subsequent terms of one year each.

2.3: Either Party may terminate this Agreement at will by the provision of at least 90 days’ written notice, such notice to take effect on the next occurring Renewal Date and not before.

3: DELIVERY, INSTALLATION AND ACCEPTANCE

3.1: For On-Premise software, We shall apply reasonable endeavours to deliver and install the Software (including any subsequent Releases) at the Address (or such other address as may be agreed between the Parties) on the dates agreed between the Parties from time to time. You acknowledge that
such installation may not require us to attend the Address as it may be performed remotely.
3.2: Cloud software is deemed installed and accepted once the Software is activated and login credentials have been provided to You. On-Premise software is deemed accepted after it has been
installed by Us.
3.3: For On-Premise software, You shall:
3.3.1: provide Us with all access reasonably required to Your systems or to the Address to enable Us to carry out Our obligations under this Agreement including for the purposes of installing, repairing
and maintaining the Software from time to time;

3.3.2: inform Us of applicable health and safety requirements whilst on Your premises and We shall comply with the same;
3.3.3: maintain adequate insurance at all times to cover any claims resulting from death or personal injury to Us and/or Our staff whilst at Your premises;

3.3.4: provide Us with details in advance in writing of any applicable security policies which may affect Our ability to carry out Our obligations under this Agreement. We shall use reasonable endeavours
to comply with such security policies as notified to Us from time to time.

4: LICENCE

4.1: Subject to these Terms and payment of the Licence Fees, We grant You a limited personal, revocable, non-exclusive, nontransferable licence, to (i) install and run the Software or hardware recommended by Us; (ii) for each User to use the Software for Your internal business purposes and not for any other purpose; and (iii) for On-Premise software, to make a copy of the Software for backup and archival purposes provided always that:
4.1.1: without prejudice to any other liabilities and responsibilities that You and/or the Users may have, You shall be liable and responsible to Us for each and every such User’s compliance with the
Agreement at all times; and

4.1.2: You undertake that You have any and all rights and permissions necessary from Users for the purposes of this Agreement.

4.2: We expressly reserve any and all other rights except those limited rights licensed to You in Clause 4.1.

4.3: You shall ensure that each User is bound by the Terms of this Agreement. You shall procure
that each and every User complies with Our Procedures as notified to You from time to time.
4.4: Save as provided in Clause 4.1 and without prejudice to Clause 4.2, You shall not in any way, directly or indirectly use, display, access, transfer, re-distribute, reference, re-sell, or sub-license the Software and/or use the Software for any illegal purpose or to bring Us, Our markets or Our business into disrepute.

4.5: You acknowledge and agree that the Software, Help Site and Specification are Our valuable property and that We incur considerable cost and expense and expends considerable effort in generating and providing the same.

4.6: Without prejudice to Clause 4.2, You may not and shall procure that Your Users do not, without limitation:

4.6.1: modify, adapt, decompile, disassemble or reverse engineer the Software in any way, except as expressly permitted by law;

4.6.2: make unauthorised copies of the Software;

4.6.3: allow any third party to use or have access to the Software, Help Site or Specification;
4.6.4: assign, transfer or sublicense the Software, Help Site or Specification or any part of it to any third party;

4.6.5: use the Software to provide services to any third party; or

4.6.6: use, evaluate or view the Software, Help Site or Specification for the purpose of designing, modifying, or otherwise creating any software program or other work of any kind, whether in whole or part.

5: ORDER FORM AND USERS


5.1: The Order may include a usage limit in relation to Your usage of the Software (the “Usage Limit”). The Usage Limit may include the maximum number of Users who can use the Software. We shall not be
responsible or liable in any way for any claims, losses, damages, costs, and expenses (including legal expenses) which arise out of or in connection with, directly or indirectly, Your exceeding the Usage Limit.


5.2: You shall not exceed the Usage Limit, except with Our prior written consent. Each User must use a unique username and password which shall not be shared with or used by any person other than the User that holds the account. You may not reduce the Usage Limit until the subsequent Renewal Date.


5.3: If You wish to increase the Usage Limit, We shall agree a new order, which if signed and approved by Us shall confirm to You that the Usage Limit has been increased. We will invoice You as applicable for increased Licence Fees on a pro rata basis for the remainder of the term until the next Renewal Date. On and from the following Renewal Date the new Usage Limit shall apply unless You inform Us otherwise in advance and in writing.
5.4: If You exceed the Usage Limit, the Software may be inoperable and We shall not be liable for its performance.

6: RELEASES

6.1: Subject to Clause 10, We shall offer You during the Term the Latest Release free of charge on each Release Date.
6.2: For On-Premise software, You are advised to arrange for installation of the Latest Release within 3 months on and from each Release Date. For Cloud software, We will install the Latest Release on or after the Release Date.
6.3: For On-Premise software, if You do not comply with Clause 6.2 We shall not be responsible for performance of the Software which may not comply with the Specification, may contain errors and faults and which shall only be provided on an “as is” and an “as available“ basis.

6.4: You acknowledge that the Software is only interoperable with the Software listed in the Help Site. Any configuration or development services requested by You may be provided by Us at Our discretion on a time and materials basis at Our then current rates and charges.

7: SUPPORT SERVICES

7.1: Where indicated in the Order, We shall provide the Support Services in accordance with the Support Level.
7.2: Subject to Clause 7.3, if You and Your Users are using the Latest Release of the Software in accordance with this Agreement and have arranged for its installation in accordance with Clause 6.2, there
shall be no separate charge to You for the Support Services which shall be included within the Licence Fee.

7.3: Software maintenance services that are not included within the Support Services or that are provided as a result of: (i) any Software that has been modified by anyone other than Us, or (ii) failure of the Software caused by You or a third party, or (iii) use of the Software otherwise than in accordance with the Help Site; or (iv) any other use that We acting reasonably consider to be unauthorised, or (v) use on hardware or equipment not recommended by Us, shall be provided solely at Our discretion and charged to You on a time and materials basis in accordance with Clause 9.3.3.

7.4: For On-Premise software, if You do not comply with Clause 6.2 and are not using the Latest Release but an earlier Release and/or if You require services outside the scope of the Support Services (including at times other than as provided in accordance with the applicable Support Level) We shall be entitled to charge You for the Support Services and any additional services on a time and materials basis at Our then current standard rates.
7.5: You shall and shall procure that Your Users shall comply with any Procedures notified to You by Us from time to time. Our reports and maintenance records, including tickets provided to You shall
be considered the accurate and authoritative record of any and all matters relating to the Support Services.

7.6: For Cloud software, We are responsible for the backup and redundant storage of Stored Content. For On-Premise software, You acknowledge that We do not provide a data backup service of any kind, and that the backup of any data, files or digital assets relating to the Software and Services (“Related Data”) is Your sole responsibility. While the Software may facilitate the backup of Related Data by placing a snapshot of it in a folder, the storage and archiving of such export is Your sole responsibility.

8: TERMINATION

8.1: We may immediately terminate the Agreement by the provision of written notice to that effect if You:

8.1.1: commit a material breach (including a persistent breach cumulatively constituting a material breach) of any of Your obligations which are incapable of remedy;

8.1.2: fail to remedy a material (including a persistent breach cumulatively constituting a material breach) breach which is capable of remedy, after having been given at least 30 days’ written
notice to cure or desist from such breach; or 8.1.3 become or are deemed insolvent or have a receiver,
administrative receiver or manager appointed in respect of the whole or any part of Your assets or business or You are unable to pay Your debts as they fall due;

8.2: You may immediately terminate the Agreement if We become or are deemed insolvent or have a receiver, administrative receiver or manager appointed in respect of the whole or any part of Our
assets or business or We are unable to pay Our debts as they fall due.
8.3: Upon termination of the Agreement, You must promptly discontinue use and access of the Software, Help Site and/or Specification and at Our option either return or destroy any and all copies of the same.
8.4: The termination of this Agreement in accordance with its Terms shall not give either Party the right to claim any compensation, indemnity or reimbursement whatsoever from the other by reason of such termination, but termination shall be without prejudice to any rights or remedies available to, or any obligations or liabilities accrued to, either party at the effective date of termination.
8.5: In the event of termination of this Agreement for any reason, We shall have no obligation to refund the relevant Licence Fees to You and termination does not relieve You of Your obligation to pay Licence Fees that are due and payable.
9: PAYMENT TERMS AND ORDER PROCESS

9.1: In consideration of the licence of the Software, the provision of the Support Services and any additional services, You shall pay the Charges.
9.2: The Licence Fees shall be payable on the Effective Date as defined in the Order and each subsequent Renewal Date.
9.3: We may invoice You in respect of:
9.3.1: Licence Fees prior to the Effective Date and each subsequent Renewal Date, provided that the due date of such invoices shall fall no sooner than 30 days after such dates;
9.3.2: any Additional Fees as described in the Order; and
9.3.3: Additional Support Charges incurred (including where such Additional Support Charges are incurred in accordance with Clause 7.3 and 7.4) at the end of each calendar month in which they arose.
9.4: The Charges are exclusive of and net of any taxes, duties or such other additional sums of any kind which shall be payable by You in any event.
9.5: Where You have provided Us with a payment method, such as a credit card, to store, You authorise Us to use such payment method to recover Charges validly due in accordance with this clause 9, regardless of whether an invoice has been issued in respect of such Charges.
9.6: Notwithstanding Clause 9.5, You shall pay invoices within 30 days of the date of the invoice.

9.7: You agree that We may review and increase the Charges, to take effect at the next Renewal Date, provided that such charges cannot be increased more than 7% in any twelve month period.
9.8: In the event of late payment, We may (without prejudice to other rights and remedies):
9.8.1: charge interest from the due date at the annual rate of 4% over the then lending rate applicable to Us of Lloyds bank on the outstanding balance on a daily basis until payment in full is recovered by Us; and
9.8.2: recover from You costs and expenses incurred in the recovery of overdue accounts from You;
9.8.3: suspend performance of the Support Services until You rectify matters or, if payment is not made within 45 days of the due date, terminate this Agreement immediately by written notice.
10: OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

10.1: You acknowledge and agree that We own any and all rights including Intellectual Property in and to the Software, Help Site, Specification and/or Support Services. You shall promptly notify Us in writing of any actual, threatened or suspected infringement of such rights of which You become aware.
10.2: You shall obtain all necessary rights, authorisations and permissions to store the Stored Content in the Software and for Us to provide and for You and Your Users to receive and enjoy the benefit of the Support Services.
10.3: We acknowledge that this Agreement does not give Us any rights in relation to Your Stored Content.

10.4: You may retrieve Your Stored Content from the Software during the Term of this Agreement.

11: INTELLECTUAL PROPERTY INDEMNITY

11.1: Subject to the limitations set out in Clause 11.5 and Your compliance with the provisions of Clause 11.2 , We will defend You, at Our own expense from and against any claim, suit or proceeding brought against You to the extent it is based upon a claim that the normal use in accordance with the Terms of this Agreement of the Software, Help Site and/or Support Service (“Indemnified Product”)
infringes upon the Intellectual Property of any third party (“Claim”).

11.2: You must: (i) immediately notify Us in writing of any Claim; (ii) give Us full information and assistance in connection with a Claim, (iii) give Us the sole right to control the defence or to settle such Claim; and (iv) not make any admissions without Our prior written consent or prejudice Our defence or prejudice Our endeavours to settle such a Claim.
11.3: Subject to Clause 11.4, if an Indemnified Product is, or in Our opinion might be, subject to a Claim, We may, at Our sole option: (i) replace or modify such Indemnified Product with a similar product or service so as to avoid infringement, or (ii) procure the right for You to continue the use of such Indemnified Product.
11.4: If We consider that neither of the alternatives set out in Clause 11.3 are commercially reasonable, We shall inform You and You shall return the Indemnified Product to Us and We shall refund pro rata
the applicable Charges paid by You to Us. In such circumstances this Agreement shall terminate with immediate effect. To the extent permitted by law, the foregoing states Our entire liability to You for
infringement of third party rights and is in lieu of any and all other remedies available to You.

11.5: We will have no liability for, and no obligation to defend You against, any Claim to the extent it is based on: (i) use of an Indemnified Product other than in accordance with the Terms of this Agreement; (ii) the combination, operation, or use of an Indemnified Product with software, hardware, infrastructure or other materials not specified in the Help Site; (iii) any modification of the Indemnified Product not made or authorised in writing by Us; or (iv) Your use of the Indemnified Product after Our notice to You that You shall cease use of the Indemnified Product.

12: YOUR INDEMNITY

12.1: Subject to Clause 12.3, You shall indemnify Us from and against any and all claims, actions, liabilities, losses, damages, costs, and expenses (including without limitation legal expenses) suffered or incurred by Us which arise out of or in connection with, directly or indirectly, Your and/or Users’ access to and/or use of the Software.

12.2: You shall indemnify Us from and against any and all claims, actions, liabilities, losses, damages, costs, and expenses (including without limitation legal expenses) suffered or incurred by Us which arise out of or in connection with, directly or indirectly, Your and Your Users’ failure to comply with Clause 10.2.

12.3: You will not be obliged to indemnify Us under Clause 12.1 to the extent that any loss is proven to have been directly caused by Our material breach of this Agreement.

13: CONFIDENTIALITY

13.1: The Acquiring Party undertakes to maintain and procure the maintenance of confidentiality of the Disclosing Party’s Confidential Information at all times and shall keep and procure that Confidential Information is kept secure and protected against theft, damage, loss or unauthorised access.
13.2: The Acquiring Party undertakes to disclose Confidential Information of the Disclosing Party only:
13.2.1: to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes of this Agreement and to procure that such officers, employees and contractors are made aware of the confidentiality obligations in this Clause 13 and are made subject to confidentiality obligations at least as onerous as those contained in this Agreement;
13.2.2: as reasonably required to be disclosed to a professional adviser provided that any such professional adviser is bound by obligations of confidentiality of at least as high a standard as those imposed on the Acquiring Party under this clause 13; and
13.2.3: as may be required by law, regulation or order of a competent authority, provided that, as practicable, the Disclosing Party is given reasonable notice of the intended disclosure and a reasonable opportunity to challenge the same.
13.3: Upon the earlier of a written request from the Disclosing Party or the termination of this Agreement for any reason, each Party shall return or destroy any and all Confidential Information of the Disclosing Party relating to the Agreement as the case may be then in its possession or control and will not retain any copies of the same.
13.4: The Acquiring Party shall immediately upon becoming aware of the same give notice to the Disclosing Party of any unauthorised disclosure, misuse, theft or other loss of Confidential Information of the Disclosing Party, whether inadvertent or otherwise.
13.5: The obligations in this Clause 13 shall not include any information that: (i) is at the time of disclosure, or subsequently becomes, publicly known except by breach of the Agreement; (ii) a Party receives from a third party, who is not under an obligation of confidentiality to the Disclosing Party; (iii) is independently
developed by the Acquiring Party without use of, or reference to, Disclosing Party’s Confidential Information, as shown by Acquiring Party’s records; or (iv) is required by law to be disclosed by Acquiring
Party, provided that Acquiring Party gives Disclosing Party’s written notice as promptly as possible under the circumstances of such requirement prior to such disclosure and provides reasonable assistance
at Disclosing Party’s expense in obtaining an order protecting the information from public disclosure.
13.6: The Software will from time to time enable a snapshot of metadata relating to Your use of the Software to be sent to Us. We use this metadata to assist Us with supporting Your use of the Software, to select features and confirm compatibility as We develop future Releases, and for similar internal uses.
14: DATA PROTECTION & PRIVACY
14.1: The following terms will have the meanings given within the Act: “Data Controller”, “Data Processor” and “Personal Data” and “Personal Data” shall include personal data relating to the Your Users,
officers, employees, agents and contractors.
14.2: We do not wish to process any Personal Data on Your behalf and will agree procedures with You to avoid the processing of Personal Data. However, if You require Us to process Personal Data for the purposes of this Agreement We will be the Data Processor in respect of such Personal Data. Where in connection with this Agreement, We process Personal Data on Your behalf, We will:
14.2.1: process such Personal Data only on Your instructions and only to the extent necessary for the performance of Our obligations pursuant to this Agreement;
14.2.2: not disclose such Personal Data to any person except as required by the Act, as required or permitted by this Agreement or with Your prior written consent;
14.2.3: implement appropriate technical and organisational measures to protect such Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, and against all other unlawful forms of processing;
14.2.4: comply with the Act in the processing of Personal Data;
14.2.5: maintain a record of processing activities in accordance with the Act;
14.2.6: ensure that any sub-processor that is engaged to process Personal Data by the Data Processor is subject to data protection obligations that are as stringent to those applicable to the Data Processor under this Agreement;
14.2.7: carry out adequate due diligence to ensure that any sub-processor is capable of providing the level of protection for Personal Data required by this Agreement;
14.2.8: ensure that all persons authorised to access the Personal Data by the Data Processor are subject to obligations of confidentiality and maintain records of all such authorised persons;
14.2.9: on termination of this Agreement, at the Data Controller’s instruction destroy the Personal Data and the Data Processor shall confirm to the Data Controller that it has done so;
14.2.10: notify the Data Controller without undue delay of any Data Breach which the Data Processor becomes aware in respect of Personal Data that it processes on behalf of Data Controller;
14.2.11: not transfer the Personal Data outside the EEA without ensuring appropriate levels of protection, including any appropriate safeguards if required, are in place for the Personal Data in accordance with the Act;
14.2.12: notify the Data Controller without undue delay if We receive any notice from a Regulatory Body or Authority which relates directly to the Personal Data processed under this Agreement and covered by the Act;
14.2.13: notify the Data Controller without undue delay if We receive a request covered by the Act for Personal Data processed under this Agreement;
14.2.14: assist the Data Controller to comply with their obligations under the Act if they receive a request for Personal Data processed under this Agreement;
14.2.15: assist the Data Controller in demonstrating their compliance with the Act if they receive a request for information from a Regulatory Body or Authority who enforce the Act;
14.2.16: maintain records that would assist the Data Controller in demonstrating their compliance with the Act; and
14.2.17: notify the Data Controller of new sub-processors, giving the Data Controller the opportunity to object to such changes.
14.3: Where We process Personal Data on Your behalf and in accordance with Your instructions, You undertake that You have all permissions necessary to do so from the Data Controller and/or Data
Subject and that Our processing will not be in breach of the Act. You shall indemnify Us from and against any and all claims, actions, liabilities, losses, damages, costs, and expenses (including without
limitation legal expenses) suffered or incurred by Us which arise out of or in connection with, directly or indirectly a breach of this Clause 14.3.
15: LIMITED WARRANTY

15.1: We warrant that the Software will operate substantially in accordance with the Specification under normal use in accordance with the Help Site during the Warranty Period. If a defect does occur during
the Warranty Period, You shall promptly provide to Us a documented example of such defect and/or such information and materials as We may reasonably request to document and reproduce an issue. Following receipt of such information and materials, if the Software does not operate as warranted, We will, at Our option, rectify it, replace it or, taking into account Your use of the Software prior to the breach of warranty, refund the Licence Fee paid for the particular Software giving rise to the warranty claim. This shall be Your only remedy in respect of a breach of warranty.

15.2: We warrant that We own any and all rights in and to the Software and that Your use of the Software in accordance with the Terms of this Agreement will not infringe any third party rights.
15.3: The warranty and remedies provided in this Agreement are the only warranties and remedies provided by Us in relation to the Software or Support Services, or any combination of them, and are exclusive and in lieu of all other warranties, terms and conditions (except where prohibited by law) including without limitation any warranty of condition, quality, performance, satisfactory quality or fitness for a particular purpose whether or not any purpose has been notified to Us. We do not warrant that the functions contained in the Software will meet Your or Your Users’ requirements nor that the operation of the Software will be uninterrupted or error-free.
15.4: Except as set out in this agreement, each of the Parties acknowledges and agrees that in entering into the Agreement, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person other than as expressly set out in the Agreement. The only remedy available to it for breach of such warranties
or representations shall be for breach of contract under the Terms of the Agreement.

16: LIMITATIONS OF LIABILITY

16.1: Neither Party shall exclude nor in any way limit liability for fraud, death or personal injury caused by its negligence or any liability to the extent the same may not be excluded or limited as a matter or law.
16.2: Subject to Clause 16.1 and 16.3 Our aggregate liability in each calendar year under or in connection with the Agreement and howsoever arising shall be limited to 50% of the Charges paid by You in that calendar year.

16.3: Subject to Clause 16.1, We shall not be liable to You under or in connection with the Agreement for:
16.3.1: the occurrence or correction of faults or malfunction of the equipment or hardware used by You for the purpose of running or using the Software;
16.3.2: any configuration or consultancy advice or recommendations in respect of any hardware, infrastructure or equipment;
16.3.3: loss of income;
16.3.4: loss of actual or anticipated profits;
16.3.5: loss of business;
16.3.6: loss of contracts;

16.3.7: loss of goodwill or reputation;

16.3.8: loss of anticipated savings;

16.3.9: loss of, damage to, or corruption of, data; or

16.3.10: indirect or consequential loss or damage of any kind, in each case however so arising, whether such loss or damage was foreseeable or in the contemplation of the Parties and whether arising in for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.

17: AUDIT

17.1: You shall maintain complete and accurate books and records relating to compliance with the Terms of the Agreement including without limitation the licence grants and restrictions and the number of Users. We shall have the right to audit Your systems and records of any kind in order to verify Your compliance with the Agreement. If We require You to provide access to data for the audit, it shall be arranged by prior request with 10 days notice. If the audit reveals unreported usage, You shall promptly pay the difference, the interest accrued on the difference in accordance with Clause 9.7 and the cost for the audit.

18: MISCELLANEOUS

18.1: This Agreement does not create any agency relationship, partnership or other form of joint enterprise between the Parties.

18.2: The invalidity or unenforceability of any provision (or part thereof) of the Agreement shall not affect the validity or enforceability of the remainder of the provisions.
18.3: No variation or waiver of or failure to exercise any rights or obligations under this Agreement shall be valid unless in writing signed by or on behalf of both Parties.
18.4: We may include Your name in Our list of customers appearing on Our website or in other marketing materials. You may request that Your name does not appear on Our website. In addition, We may publish a press release and/or success story relating to Your use of the Software provided that We shall ensure You approve the content of any and all such publications prior to publication.
18.5: Save in relation to payment, neither Party will be liable for any delay or failure to perform its obligations under the Agreement due to a Force Majeure event. In the event of either Party being so delayed or prevented from performing its obligations such Party shall: (i) give notice in writing of such delay or prevention to the other Party as soon as reasonably possible; (ii) use all reasonable endeavours to mitigate the effects of such delay or prevention upon the performance of its obligations under the Agreement; and (iii) resume performance of its obligations as soon as reasonably possible after the
removal of the cause of the delay or prevention. If the Party affected by an event of Force Majeure, is unable to perform its obligations for 30 days or more the unaffected Party may terminate this Agreement by the provision of written notice to that effect.
18.6: All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been properly given if delivered by hand or by courier, or sent by prepaid registered mail, addressed to intended Party’s address as specified on the Order or such other address as either Party may notify to the other for this purpose from time to time. Any notice shall be treated as having been served on delivery if delivered by hand, 2 working days after despatch if sent by courier and 4 working days after posting if sent by pre-paid registered mail. For the purposes of notices sent to Us, a copy shall also be sent to: Director, Axomic Ltd, 2nd Floor, 4 Tabernacle Street, London, EC2A 4LU.

18.7: The Agreement and the rights hereunder are not transferable or assignable in any way without the prior written consent of the Parties provided: (i) that We may delegate the performance of certain services to third parties; and (ii) We may share data and information provided to Us under this Agreement with such third parties to enable them to perform such services. In such cases We shall remain responsible to You for the delivery of such services.
18.8: This Agreement constitutes the entire and only Agreement between the Parties and supersedes and replaces any previous agreement or understanding relating to the subject matter of this Agreement including any previous OpenAsset software subscription terms and conditions between You and Us and shall supersede and take precedence over any terms attached by You in relation to purchase orders
under this agreement whether before, during or after the date of this Agreement.
18.9: You agree that We may review and amend these Terms from time to time, with such amendments to take effect at the next Renewal Date. You may choose to agree to amended Terms at any time by signing a new Order, even if the Charges have not changed.
18.10: The Agreement shall be governed by the laws of England and the Parties submit to the exclusive jurisdiction of the English courts.
18.11: No third party shall have any rights to enforce this Agreement under the Contracts (Rights of Third
Parties) Act 1999 or otherwise.

18.12: The following Clauses survive expiration or termination of the Agreement Clauses 1, 5, 8.3, 8.4, 8.5, 9, 10, 12, 13, 14.3, 15, 16 and 18.

OPENASSET SOFTWARE SUBSCRIPTION TERMS AND CONDITIONS

OPENASSET SOFTWARE SUBSCRIPTION
TERMS AND CONDITIONS