The legal stuff

Jadu Inc: Technical Support, Service and Hosting Agreement

The provision of our technical support, service and hosting is subject to the the terms and conditions set out in the the Schedules below. Your payment for the provision of this service shall constitute your acceptance of these terms and conditions and shall form a contract between yourself (you) and Jadu Inc incorporated and registered in the United States of America with company EIN number 27-2611871 whose principal place of business is at 70 West Madison Street, Chicago, IL 60602, United States (us or we) in respect of the support, maintenance (and where relevant) hosting as listed in the Contract Information Sheet and in accordance with the License of the Software

Contents

  1. Schedule 1 – Terms and Conditions
  2. Schedule 2 – Standard Support Service Levels
  3. Schedule 3 – Hosting Provisions

Schedule 1 – Terms and Conditions

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this agreement and the schedules to it.

Business Day: a day (other than a Saturday, Sunday or public holiday)

Contract Information Sheet: the invoice or any other document we have provided detailing the Services and setting out the Charges for the Services.

Charges: the charges payable for the Services under this agreement, being (where the context so requires) each or any of the following:

a) the charges for the Standard Support Service set out on the Contract Information Sheet (which charges also include the Updating Service); and

b) (if applicable) the charges for the Hosting Service set out on the Contract Information Sheet,

in each case as the same may be amended from time to time in accordance with the provisions of clause 4.6.

Commencement Date: the commencement date of this agreement set out on the Contract Information Sheet.

Continuum Release: an update of the Software which corrects faults, adds functionality or otherwise amends or updates the Software.

Contract Year: any 12-month period ending on any anniversary of the Commencement Date unless the  term is not for a Contract Year and for an alternative terms in which case any reference in this agreement to Contract Year shall instead be for the the applicable contract period save for in the context where the agreement is subsequently renewed for a Contract Year.

Critical Fault: a reproducible fault which substantially hinders or prevents you from using a material part of the functionality of the software in question.

Deliverables: any Documentation, Software, know-how or other works created or supplied by us (whether alone or jointly) in the course of providing the Services.

Documentation: the documents provided by us for the Software, in either printed text or machine-readable form, including any technical documentation, program specification and operations manual.

Environment: a single installation of the Software (whether in a single server, virtual server or clustered server infrastructure) and also specifically referred to in the agreement as LIVE Environment (which is intended to provide content and software functionality to end users) or UAT Environment (which is for the purpose of conducting user acceptance testing by you before changes are made to a LIVE Environment).

Hosting Service: the optional hosting service to be provided by us to you under clause 3.2 and Schedule 3.

Hosted Software: the Software indicated as hosted on the Contract Information Sheet.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

License: any license or other agreement between us in respect of the licensing of all or any part of the Software.

Non-Critical Fault: any reproducible fault in the Software other than a Critical Fault.

Services: includes the Standard Support Service, the Updating Service and (if appropriate) the Hosting Service.

Software: Jadu proprietary computer software as detailed on the Contract Information Sheet

Support Portal: the online support and incident-reporting help desk system provided by us at http://support.jadu.net (or such other URL as we may advise from time to time).

Standard Support Service: the support service to be provided by us to you under clause 3.1 and clause 3.3.

Standard Support Hours: 8.00 am to 6.00 pm (EST) on Business Days.

Supported Software: has the meaning set out in clause 2.1.

Supported Continuum Version: the most recently issued Continuum Release together with the previous six Continuum Releases.

Third Party Libraries: any components and libraries used by us in connection with the delivery of the Services which are developed and licensed by third parties, whether such components and libraries are used within the Supported Software or otherwise and whether they are selected by you or by us.

Updating Service: the service to be supplied by us to you under clause 3.1 and clause 3.4.

1.2 The headings in this agreement do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this agreement.

1.3 Unless the context otherwise requires:

a) The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.

b) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

c) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

d) A reference to any party shall include that party's personal representatives, successors and permitted assigns.

e) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

f) A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

g) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

h) A reference to writing or written includes e-mails and other electronic messages.

1.4 If any conflict arises between this agreement and any License, the terms of the License shall prevail.

1.5 Words in the singular include the plural and those in the plural include the singular.

1.6  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's successors and permitted assigns.

2. Supported Software

2.1 The Supported Software is:

a) the Software;

b) any Continuum Release which is acquired by you (whether under this agreement or any other agreement between you and us) during the course of the relevant License and which accordingly becomes part of the software defined as the Software under that License; and

c) any other software which we agree in writing should be Supported Software for the purposes of this agreement,

PROVIDED THAT we shall not be required to support such Software:

a) on any Solution Stack other than as indicated on the Contract Information Sheet;

b) in respect of any version other than a Supported Continuum Version; or

c) in any Environment other than one of the Environments specified on the Contract Information Sheet.

2.2 For the avoidance of doubt, the Supported Software excludes:

a) any software not supplied to you by us; and

b) any bespoke software developed by us for you (unless specifically described on the Contract Information Sheet or otherwise agreed in writing by us).

2.3 In relation to Continuum Releases:

a) as part of the Updating Service, we shall make Continuum Releases available to you without charge (either by download or the supply of DVDs or other media, at our discretion); and

b) you shall be responsible for installing any Continuum Release and for the costs of rebuilding your forms, templates and other presentation layer items following the installation of any such Continuum Release. Any assistance we provide with installation or building of presentation layer items shall be at our professional rates and in accordance with our Professional Services Terms and Conditions (in both cases, as are in force from time to time and as set out on our website at jadu.net).

3. The Services

3.1 We shall supply, and you shall take and pay for, the following Services:

a) the Standard Support Service; and

b) the Updating Service.

3.2 If indicated on the Contract Information Sheet, we shall supply, and you shall take and pay for, the Hosting Service. The provisions of Schedule 3 shall apply to the Hosting Service.

3.3 In relation to the Standard Support Service:

a) the Standard Support Service shall be provided during the Standard Support Hours (or such other hours as we may agree in writing) and shall comprise:

i) online support via Support Portal to 5 named users at your organization in respect of technical issues and errors in the Supported Software. Our support staff shall be entitled to close any ticket which does not relate to a technical issue or error or where they are able to direct you to the solution on Support Portal or in any Documentation;

ii) telephone support in respect of technical issues and errors in the Supported Software that you have logged via Support Portal; and

iii) diagnosis and, where possible, correction of faults in the Software;

b) where a Non-Critical Fault is to be corrected in a forthcoming Continuum Release, then for a reasonable period before the issue of such Continuum Release we may decline to provide assistance in respect of that Non-Critical Fault; and

c) we shall use our reasonable endeavours to ensure that the Standard Support Service meets the service levels set out in Schedule 2.

3.4 In relation to the Updating Service:

a) we shall issue Continuum Releases of the Software as and when required and in whatever form (including by way of a local fix or patch of the Software or a temporary by-pass solution) as we determine in our absolute discretion;

b) we shall supply to you all revisions to the Documentation which are necessary in order to reflect any Continuum Release acquired by you; and

c) application of a Continuum Release is by arrangement with you, pursuant to the Updating Service. To ensure that we do not introduce either Critical or Non-Critical Faults (together Faults) to your Live Environment(s), we recommend that you adopt a UAT Environment to mirror the architecture and content of your LIVE Environment to allow both parties to test changes to the Supported Software before applying them to the LIVE Environment;

i) where you have adopted a UAT Environment, we shall apply any changes pursuant to the Updating Service to the Supported Software on your UAT Environment, inform you in writing and require you to perform a user acceptance test of the changes, as applied to your UAT Environment within an agreed reasonable time. We shall not apply any changes to your LIVE Environment and Supported Software until we have received written confirmation from you that the Supported Software operates as required on the UAT Environment. We shall not be liable for Faults in the Supported Software identified on your LIVE Environment that cannot be replicated on your UAT Environment;

ii) where you have not adopted a UAT Environment and we have been unable to test such changes as referred to above, you acknowledge and agree that the Standard Support Service shall not be applied and we shall not be liable for any loss or damage arising from Faults that we introduce where we have been unable to test such changes.

3.5 We may, on prior notice to you, make changes to the Services, provided such changes do not have a material adverse effect on your business operations.

3.6 We shall be entitled for support purposes to maintain our own copy of any or all of your Environments, which shall be accessible only by us, our agents and sub-contractors.

3.7 We shall have no obligation to provide the Standard Support Service in respect of any faults in Supported Software arising from:

a) misuse, incorrect use of or damage to the Supported Software from whatever cause (other than any act or omission by us), including failure or fluctuation of electrical power;

b) any changes to the Supported Software database(s) that have not been made by us or our agents or sub-contractors;

c) use of the Supported Software with unsupported browsers. For the avoidance of doubt a list of currently supported browsers is available via the Support Portal and is updated from time to time;

d) use of the Supported Software in combination with any equipment or software not provided by us or not designated by us for use with any Continuum Release forming part of the Supported Software, or any fault in any such equipment or software;

e) any breach of your obligations under this agreement howsoever arising or having the Supported Software maintained by a third party;

f) user error; or

g) Faults in the Supported Software identified on your LIVE Environment that cannot be replicated on your UAT Environment.

3.8 For the avoidance of doubt, the Services do not include any professional services (such as the development of bespoke software or the building or alteration of forms or templates). Any such services shall be provided at our professional rates and in accordance with our Professional Services Terms and Conditions (in both cases, as are in force from time to time and as set out on our website at jadu.net).

3.9 If you report issues in a Supported Continuum Release older than the most recently issued Continuum Release, we shall provide you with technical advice and assistance in upgrading to the latest Continuum Release. If the relevant issue is not resolved following such upgrade we shall schedule a fix in a subsequent Continuum Release at our discretion (with reference to the severity of the reported issue and the impact upon your business or organization).

4. Charges

4.1 In consideration of the Services, you shall pay the Charges. You shall pay the Charges annually in advance within 30 days of the date of our invoice.

4.2 You shall pay all costs (at our then prevailing rates) and reasonable expenses incurred by us for work carried out by us in connection with any fault which is not covered by this agreement including for the avoidance of doubt any data recovery work undertaken by us following loss or damage to data caused by matters or circumstances beyond our reasonable control (including but not limited to viruses, denial-of-service attacks or any other form of cyber-attack).

4.3 You shall reimburse any reasonable travel or subsistence expenses incurred by us where such expenses are incurred wholly and exclusively for the purpose of providing on-site support as part of the Services, provided that any request for reimbursement is in the form of a proper invoice accompanied by appropriate receipts.

4.4 If you fail to make any payment due to us under this agreement by the due date for payment, then, without limiting our remedies under clause 12, you shall pay a late charge equal to 1.5% per month (or if less, the maximum amount allowed by applicable law) on the overdue amount from the due date until actual payment of the overdue amount.

4.5 All amounts payable under this agreement shall be exclusive of the relevant local sales taxes which shall be paid at the rate and in the manner for the time being prescribed by law.

4.6 We may increase the Charges as from each anniversary of the date of this agreement. Any increase shall be notified to you at least two months before such anniversary.

4.7 All amounts due under this agreement shall be paid by you to us in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

5. Intellectual Property Rights

All Intellectual Property Rights in the Deliverables shall belong to us and you shall have no rights in respect of any of the Deliverables except as expressly granted under this agreement or in any applicable License.

6. Your responsibilities

6.1 You shall provide us and our staff and all other persons duly authorized by us with full, safe and uninterrupted access (including remote access with a network connectivity speed of at least 128KB per second) to your premises, systems, facilities and the Software as may reasonably be required for the purpose of performing the Services, such access, except in the case of emergency or agreed out-of-hours downtime, to be within the Standard Support Hours. Where the Services are to be performed at any of your premises, you shall provide adequate working space and office facilities (including telephone) for use by our staff and take reasonable care to ensure their health and safety.

6.2 You shall take all reasonable steps to ensure that the Supported Software is operated in a proper manner by your employees.

6.3 You shall:

a) co-operate with us in performing the Services and provide any assistance or information as may reasonably be required by us, including in relation to the diagnosis of any faults;

b) report faults promptly to us; and

c) (save for where we are hosting the Supported Software for you under the Hosting Service) keep full backup copies of all of your data.

6.4 You shall indemnify us against any losses, damages, costs (including legal fees) and expenses incurred by or awarded against us as a result of your breach of this agreement howsoever arising or any negligent or wrongful act of you or your officers, employees, contractors or agents.

7. Non-solicitation

You shall not, for the duration of this agreement, and for a period of six months following termination, directly or indirectly induce or attempt to induce any of our employees who have been engaged in the provision or management of the Services or otherwise in connection with this agreement to leave our employment.

8. Confidentiality and publicity

8.1 Except to the extent set out in this clause 8.1, or as required or provided by law we shall each:

(a) treat the other party's confidential information (including without limitation confidential information embodied in any software or software documentation and confidential information in relation to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked "confidential"), or which ought reasonably be considered to be confidential) (Confidential Information) as confidential; and

(b) (subject to clause 8.2) not without the owner's prior written consent disclose the other party's Confidential Information to any other person other than those of our employees who need to know the same for purposes relating to this agreement (who for the avoidance of doubt shall be made aware of the confidential nature of the Confidential Information and of their duty of confidence to the owner).

8.2 Nothing in this clause 8 shall prevent either party from using any techniques, ideas or know-how gained during the performance of this agreement in the course of its normal business to the extent that this use does not result in a disclosure of the other party's Confidential Information or an infringement of Intellectual Property Rights.

8.3 We may refer to you as being our client in our customer reference lists and sales presentations and shall be entitled to refer to you in any advertising or press release (in all cases subject to the terms of clause 8.1 above). Where we request you provide a reference for us, you shall not unreasonably refuse such request.

8.4 You shall not without our written consent issue any written notice, press release or other publicity which in any way identifies us as a provider of services to you.

9. Our warranties

9.1 We represent and warrant to you that:

a) the Services will be performed:

i) in accordance with all applicable laws and regulations; and

ii) with reasonable skill and care;

b) to the best of our knowledge and belief, the Deliverables will not infringe the Intellectual Property Rights of any third party; and

c) at the date of this agreement, we have obtained and will maintain for the duration of this agreement all permissions, licenses and consents necessary for us to perform the Services.

9.2  If, during the term of this agreement, we receive written notice from you of any breach by us of the representations and warranties contained in clause 9.1 (a), we shall, at our own option and expense, remedy that breach within a reasonable period following receipt of such notice, or terminate this agreement immediately on written notice to you and repay to you all sums which you have paid to us under this agreement during the year in which the termination occurs, less a charge for the Services performed up to the date of termination. You shall provide all information reasonably necessary to enable us to comply with our obligations under this clause 9.2. This clause (together with paragraph 2 of Schedule 3 in respect of Hosting Services) sets out your sole remedy and our entire liability for breach of clause 9.1 (a).

10. Limits of liability and Insurance

10.1 Nothing in this agreement shall limit or exclude our liability for:

a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;

b) fraud or fraudulent misrepresentation; or

c) breach of the terms implied by title and quiet possession covered in relevant statute.

10.2 Subject to clause 10.1:

a) we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:

i) loss of profits, sales, business or revenue;

ii) business interruption;

iii) loss of anticipated savings;

iv) loss or corruption of data or information;

vi) loss of business opportunity, goodwill or reputation; or

vii) any indirect or consequential loss or damage.

b) although we shall use reasonable care and skill in selecting any Third Party Libraries (meaning any components and libraries used by us within the Services of Supported Software which are developed and licensed by third parties), we shall have no liability whatsoever to you for any losses (including in relation to any security breaches) arising in connection with any defects or malicious code present in such Third Party Libraries;

c) you understand and accept that we use third parties and hosting partners to provide the hardware, software, networking, storage, and related technology required to run the Services and we make no representation as to the service levels provided and shall not be responsible for any failure or down-time of such services. Without prejudice to any other provision of this agreement, our total liability to you in respect of such services shall in no circumstances exceed any apportioned corresponding sum we recover from the third party or hosting partner in respect of any breach; and

d) our total liability to you in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed a sum equal to the Charges paid by you in the Contract Year in which the liability arises.

10.3 Except as expressly stated in this agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us in respect of this agreement.  Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, this agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

10.4 You acknowledge that:

a) you are exclusively responsible for:

i) reviewing any new Continuum Release acquired by you in accordance with clause 2;

ii) ensuring that your staff are trained in the proper use and operation of the Software;

iii) effecting and maintaining adequate insurance cover in respect of any loss or damage to your data (whether stored on your servers or hosted on ours under the Hosting Service);

iv) (save in respect of Hosted Software) making regular backup copies of your data to ensure recovery of your data if the Software malfunctions; and

v) the selection, use of and results obtained from any other programs, materials or services used in conjunction with the Software;

b) the level of the Charges reflects the allocation of risk between the parties set out in clause 9 and clause 10; and

c) you are in a better position than us to assess and manage your risk in relation to use of the Software.

10.5 All dates supplied by us for the delivery of Continuum Releases or the provision of other Services shall be treated as approximate only. We shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

10.6 You shall ensure that you have in place public liability insurance to cover any injury that could be suffered by our personnel at your premises.

11. Duration

11.1 Supply of the Services by us to you shall commence on the Commencement Date and, subject to termination in accordance with the provisions of this agreement, shall continue for a term of one year and renew or expire (as the case may be) in accordance with the provisions of clause 11.2 below.

11.2 We will issue a renewal invoice to you in advance, normally between 4 and 8 weeks prior to the end of each Contract Year, together with any new terms and conditions that will apply. On payment by you of the invoice within 30 days of the date of the invoice, this agreement, subject to any new terms and conditions, will renew automatically. If you do not pay the invoice within such period then (unless we agree otherwise) this agreement shall expire at the end of the Contract Year without further notice to you.

11.3 Following expiry of this agreement, any resumption of the Services will require you to enter into a new agreement with us as well as the payment by you of our standard maintenance (and where applicable, hosting) charges in force from time to time as well as the list price of the most recent update or upgrade of the relevant Software.

12. Termination

12.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies but subject to clause 12.2, either party may at any time terminate this agreement and/or any of the Services with immediate effect by giving written notice to the other party if:

a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

b) the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) which is irremediable or (if such breach is remediable) the other party fails to remedy that breach within a period of 30 days after being notified in writing to do so;

c) the other party repeatedly breaches any of the terms of this 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 this agreement;

d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of relevant statute;

e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

g) 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 other party;

h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.1 (d) to clause 12.1 (j) (inclusive); or

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

12.2 Clauses 12.1 (d) to 12.1 (k) shall not apply to any statutory demand, winding-up petition or similar process which:

a) the relevant party can reasonably demonstrate is frivolous, vexatious or an abuse of process; or

b) is withdrawn, discharged, set aside, stayed or dismissed within 14 days of its issue or commencement.

12.3 Without limiting our other rights or remedies, we may terminate this agreement (or suspend any Services under it) with immediate effect by giving written notice to you if you fail to pay any amount due under it (or any other agreement between us) on the due date for payment or if you repeatedly fail to implement the advice given in respect of the Services or interfere with the Services, whether or not such interference is performed by a third party under your instruction or if your staff are abusive or behave unreasonably to our staff.

12.4 Without limiting our other rights or remedies, we may suspend provision of any Services under this agreement if you become subject to any of the events listed in clause 12.1 (c) to clause 12.1 (l), or we reasonably believe that you are about to become subject to any of them or if you fail to inform us of updates to your contact details to the extent we are unable to communicate with you.

13. Effect of termination

13.1 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.

13.2 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement (including clause 1, clause 5, clause 8 and clause 10) shall remain in full force and effect.

13.3 Termination of this agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.

13.4 On termination of this agreement for any reason, your right to receive the Services shall cease automatically.

13.5 On termination of this agreement for any reason, you shall immediately pay any outstanding unpaid invoices and interest or late charges due to us.

14. General

14.1 This agreement constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You acknowledge that in entering into this agreement you do not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

14.2 Neither of us shall be liable to the other as a result of any delay or failure to perform our obligations under this agreement as a result of any event beyond our reasonable control including (without limitation) strikes, lock-outs or other industrial disputes (whether involving our employees or the employees of any other relevant party), failure of a utility service, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, failure of suppliers or subcontractors, viruses, denial-of-service attacks or any other form of cyber-attack, accident, fire, flood and epidemics. In the event that either of us is delayed or prevented from performing our obligations under this agreement, that party shall:

a) give notice in writing of such delay or prevention to the other party as soon as reasonably possible, stating the effective date and extent of such delay or prevention, the cause thereof and its estimated duration;

b) use reasonable endeavours to mitigate the effects of such delay or prevention of performance of its obligations under this agreement; and

c) resume performance of its obligations under this agreement as soon as reasonably possible after the removal of the cause of the delay or prevention.

14.3 Any notice to be served in respect of this agreement must be in writing and must be served by hand or registered post or recorded delivery and in the case of a company must be served at its registered office for the time being. In any other case notice may be served at any address for the time being of the person to be served. Service shall take effect, if given by hand, on the date of delivery. If given by post, it shall take effect 2 Business Days after posting.

14.4 Our waiver of any right under this agreement is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by us in exercising any right or remedy under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.

14.5 Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

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

14.7 Nothing in this agreement is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between us, nor constitute either of us the agent of another party for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other in any way.

14.8 You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of our rights or obligations under this agreement without our consent. We may assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of our rights or obligations under this agreement.

14.9 Except as set out in these terms and conditions, no variation of this agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by us.

14.10 This agreement will not create nor will it be construed as creating, any right which is enforceable by any person who is not a party to this agreement.

14.11 This 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 Illinois law, and the parties irrevocably submit to the exclusive jurisdiction of Chicago, Illinois in the event of a dispute under this agreement.

Schedule 2 – Standard Support Service Levels

Support Ticket Priority and Types

1. The Standard Support Service defines four separate severity levels for a ticket:

- Level 1: Complete outage of Jadu hosted / managed and supported services.

- Level 2: Issues with functionality or errors with software that prevents operation.

- Level 3: Issues with functionality or errors with software that inhibits but does not prevent operation.

- Level 4: Minor functional Issues, content related problems and queries, or customer service     comment /complaint.

2. The types of issues that can be raised under this agreement are defined as:

a) Bug: A deviation from the intended operational parameters of the Supported Software that results in unexpected behaviour.

b) Styling Issue: Where the front-end deviates in style from the signed off Jadu design except where such deviations are as a result of changes not made by us.

c) Server Configuration: Where a server hosting the Hosted Software is configured in line with the software system requirements but where there is an issue that affects the operation of the Supported Software.

d) Knowledge Issue: Any ticket raised that either requests instruction or that is raised under another issues type and subsequently found to be as a result of lack of product knowledge. If such tickets are raised on a regular basis or in large numbers then Jadu will refer the customer to attend a chargeable training course.

3. Any tickets raised by the customer that do not fall under the definitions shown in clause 2 above are considered to be a request for change and shall be chargeable at our professional rates and in accordance with our Professional Services Terms and Conditions. Jadu may, at its sole discretion, waive such fees where the effort is determined to be trivial or as a gesture of goodwill. Should a customer make a significant number of small requests, or make multiple requests within a short time frame then charges will be levied.

Target Response Times

1. Jadu will respond to all tickets within a maximum of three hours of them being raised regardless of priority and type within the normal hours of support. For the purposes of this agreement the time at which an issue is raised is considered to be the date and time at which it is entered into the Support Portal. Any issue raised by the customer via telephone call will be logged on their behalf within the portal.

2. Where issues are raised by telephone call then the first response target of three hours will be deemed to have been met by the interaction within said call. For the purposes of the audit trail and any subsequent reports the times will be taken from the date and time the issue was logged in the Support Portal.

3. Due to the varying types of support tickets and the dependency on customer interaction Jadu do not offer a resolution target.

Schedule 3 – Hosting Provisions

1. The Hosting Service shall include the hosting by us or our sub-contractors of the Hosted Software together with the provision of such server maintenance services, infrastructure, hardware and bandwidth as are necessary to provide such hosting.

2. We aim for 99.9% uptime but you acknowledge and agree that it is not possible to provide any hosting service free of faults (particularly where we are reliant on the services of third party hosting providers) and we offer no warranties in this respect. Save for where we opt to exercise our discretion in relation to the operation of clause 10.2(c), your sole remedy in respect of any downtime shall be that we shall refund to you $250 on each Business Day on which the Hosting Service is interrupted for a continuous period of at least 8 hours between the hours of 9am and 5pm as a result of a hardware error, an error in the Software or any act or omission by us during any maintenance or upgrade task PROVIDED THAT we shall not pay such refund where any interruption to the Hosting Service is attributable to:

a) the acts or omissions of you, your employees, agents or sub-contractors;

b) any virus, denial of service, hacking attempt or other malicious action or unauthorized access by any third party (other than where caused by our breach of the terms of this agreement);

c) a hardware failure that is restored or repaired within one Business Day;

d) any national or regional internet connectivity, electricity supply or routing issue;

e) any other event beyond our reasonable control in accordance with clause 14.2; or

f) excessive traffic or loading to the servers which exceeds the maximum capacity of the Hosting Service as notified or advertised by us prior to the commencement or renewal of this agreement.

3. We shall back up and archive the Hosted Software source code and database once per day (using daily differential and weekly full backups). We shall maintain any such backups for at least two weeks.

4. We will respond to any outage, technical issue or service interruption as soon as reasonably practicable. We will restore any severely affected system from the latest backup and bring it back into service as soon as reasonably practicable at no additional cost to you save where any loss or damage to data is caused by matters or circumstances beyond our reasonable control (including but not limited to viruses, denial-of-service attacks or any other form of cyber-attack) in which case the provisions of clause 4.2 shall apply.

5. We shall provide virus-checking of the Hosted Software on the commencement of the Hosting Service and periodically thereafter. We shall also provide firewall protection.

6. We shall provide such server monitoring, log file rotation, application of server operating system updates and patches and user account management services as we reasonably consider necessary for the provision of a reliable and consistent Hosting Service.

7. We may suspend for the purpose of repair, maintenance or improvement, part or all of the Hosting Service upon 24 hours’ notice to you and shall use our reasonable endeavours to restore the Hosting Service as soon as is reasonably practicable following any such suspension.

8.  You shall follow any instructions given by us in respect of the Hosting Service which we reasonably consider necessary for safety or to maintain or improve the quality of the Hosting Service.

9. Unless we agree otherwise in writing, your use of the Hosting Service shall be limited to 100GB per month. Any use over such limit shall be subject to additional bandwidth charges, in accordance with our rates advertised or notified to you from time to time.

10. You acknowledge that we are not responsible for any of your content, data, files, documents, links or personal data (Client Materials) held within any system database used by the Software and you shall indemnify us and keep us indemnified against any claims, demands, actions or losses that we may suffer, sustain or incur arising in connection with the Client Materials including any claim from any data subject that his personal data has been processed unlawfully.

11. You shall not knowingly publish, post, link to or transmit any material which is unlawful, offensive, threatening, libellous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or the terms of this agreement or contains any virus or other malicious computer program.

12. You shall keep secure any user names and passwords related to the Hosting Service and shall notify us immediately of any known or suspected unauthorized use of the Hosted Software or breach of security, including the loss, theft or unauthorized disclosure of one of your passwords or other security information.

13. You shall observe all reasonable security and operational procedures we may from time to time prescribe and you shall not use the Hosting Service in any way which could be detrimental to our other clients and customers.

14. We shall be entitled to update the technical specification of the Hosting Service for operational reasons. In order to allow us to continually upgrade our hosting facilities, we may from time to time relocate your servers within our data centres, make changes to the provision of the Hosting Service, URLs and Internet protocol (IP) addresses and establish new procedures for the use of the Hosting Service. We will give you advance notice of any such change and endeavour to minimise the effect of any such changes on your use of the Hosting Service.