Service Terms

WORKFLOW SCIENCE LIMITED

TERMS AND CONDITIONS FOR SUBSCRIPTION SERVICES

Please read this Agreement carefully before accessing or using the Services. By using the Services and agreeing to receive the Services, you agree to be bound by the terms and conditions of this Agreement. If you do not agree to the terms and conditions of this Agreement you must not use the Services or download, install or use the Applications for any purpose whatsoever.

This Agreement is made on the date that you accept the terms and conditions below and we acknowledge that acceptance with an order confirmation e-mail, at which point both parties are deemed to have expressly accepted the terms of this Agreement (the ‘Commencement Date‘).

The Agreement shall be formed between us, Workflow Science Limited, a company incorporated in England and Wales whose registered number is 04248591 and whose registered office is at 29 Wood Street, Stratford-upon-Avon, Warwickshire CV37 6JG (‘Workflow Science‘) and you (the ‘Customer‘).

Background

(A)            Workflow Science has developed certain Services and Applications (as defined below) which provide functionality to model business processes and organisation structures and resources and run such business processes in an automation system.

(B)            Workflow Science wishes to make such Services available via the JustModel, Solo or the TeamWork Subscription services.

(C)            Customer and its Users will be able to benefit from the Services by interacting with them remotely through the Internet.

(D)            Workflow Science wishes to provide the Services and Customer agrees to pay for the Services subject to and in accordance with the terms and conditions set out in this Agreement.

The parties agree:

1.                Definitions and interpretation

1.1            Words shall have the meanings given to them in this Agreement, including as set out below:

Anonymous User: any user from the general public with which Customer has (necessarily) no relationship but who uses the Service when the Customer has made it available as a result of creating a process supporting interaction with such a user using Modeller and activating the process in the Automation Service;

Applicable Law: means any and all applicable laws, statutes, orders, rules, treaties, decree, regulations, directives, edicts, bye-laws, schemes, warrants, other instruments made under or to be made under any statute, any exercises of the royal prerogative and codes of conduct and regulatory rules or guidelines, whether local, national, international or otherwise existing from time to time, together with any other similar instrument having legal effect in the relevant circumstances;

Applications: means the Modeller application owned by Workflow Science and made available to Customer as part of the Services, as set out in Schedule 3;

Associate: means in relation to a party, any other entity which directly or indirectly Controls, is Controlled by, or is under direct or indirect common Control with that party from time to time;

Authenticated User: means Customer employees authorised by Customer to access the Services;

Automation Service: means the Workflow Science ‘Automation Service’ consisting of software, (virtual) servers, databases and network and security infrastructure through which processes created by Users of the Modeller may be launched, processed, run and supervised, and Users may access any human work assigned to them, subject to the provisions as set Schedule 3;

Business Day: means a day, other than a Saturday, Sunday or public holiday, on which clearing banks are open for non-automated commercial business in the City of London;

Confidential Information: all information whether technical or commercial know-how (including all specifications, inventions, processes, initiatives, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties) given by one party to the other or otherwise obtained by one party relating to the other party’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, products and customers, including information relating to management, financial, marketing, technical and other arrangements or operations of any Associate, person, firm, or organisation associated with that party where the information is:

(a) identified as confidential at the time of disclosure; or

(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure;

Control: means that a person owns directly or indirectly more than 50% of the shares or securities of the other person representing the right to vote on all or substantially all matters including the election of directors and Controls and Controlled shall be interpreted accordingly;

Customer Data: means all information of whatever form (whether or not Personal Data) relating to Customer and/ or any of its Associates or business that is provided to Customer in connection with the Services, and including any information (whether or not Personal Data) provided by Users arising out of or in connection with their access to and/or use of the Services;

Customer Data Claim: has the meaning set out in clause 8;

Customer Indemnified Party: has the meaning set out in clause 8;

Data Controller: means data controller as defined in the Data Protection Legislation;

Data Processor: means data processor as defined in the Data Protection Legislation;

Data Protection Legislation: means the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, each as amended from time to time, and all other applicable privacy and data protection laws and regulations, as well as any guidance and/or codes of practice issued from time to time by the Information Commissioner;

Documentation: means the documents (in whatever media) that accompany the Services or Applications, including all data, reports and specifications;

Escalation Committee: has the meaning set out in clause 18;

Extranet User: means any user who is not an Anonymous User but who belongs to a closed user group and who uses the Service when the Customer has made it available as a result of creating a process supporting interaction with such a user using Modeller and activating the process in the Automation Service;

Force Majeure: means an event or sequence of events beyond a party’s reasonable control (which could not reasonably have been anticipated and avoided by a party) preventing or delaying it from performing its obligations hereunder, including war, revolution, terrorism, riot or civil commotion, or reasonable precautions against any such; strikes, lock outs or other industrial action, whether of the affected party’s own employees or others; blockage or embargo; acts of or restrictions imposed by government or public authority; explosion, fire, corrosion, flood, natural disaster, or adverse weather conditions. Force Majeure does not include inability to pay, mechanical difficulties, shortage or increase of price of raw materials, over-commitment or market or other circumstances which may make the terms of this Agreement unattractive to a party;

Infringing Data: has the meaning set out in clause 8;

Intellectual Property Rights: means any and all copyright, know-how, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, the right to sue for passing off, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not,

(b) including any applications to protect or register such rights,

(c) including all renewals and extensions of such rights or applications,

(d) whether vested, contingent or future, and

(e) wherever existing;

Insolvency Event: means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction;

JustModel: means that relevant Subscription Level as set out in Part 2 of Schedule 2;

Losses: means all incurred losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including legal fees on a solicitor/client basis) and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties;

Modeller: means the Workflow Science ‘Modeller’ application, as set out in Schedule 3;

Modeller EULA: means the End User Licence Agreement accepted by Customer when downloading or installing Modeller;

Personal Data: means personal data as defined in the Data Protection Legislation and shall include, where applicable, personal data contained within Customer Data;

Portal: means the Workflow Science portal through which Users may access the Automation Service subject to the provisions as set out in Schedule 3;

Portal Terms of Use: means the terms of use accepted by Customer when using the Portal, a copy of which is located at www.workflow-science.com/portal-terms-of-use;

Service(s): means the Automation Service provided remotely to Customer for the benefit of Customer and its Users on a subscription basis in accordance with the terms of this Agreement, and as further set out in the Documentation and Schedule 2. Where applicable, the Services shall include any error corrections, patches, fixes, updates, upgrades, new releases or new versions of software subsequently developed (if any);

Service Charge: means the fixed charge to Customer in return for access to the Service based on the Customer’s Subscription Level, as set out in Schedule 4;

Solo: means that relevant Subscription Level as set out in Part 2 of Schedule 2;

Subscription Charge(s): means the charges referred to in clause 4 and set out in Schedule 4 comprising of the Service Charge and the Usage Charges (where applicable);

Subscription Level: means the various levels of a subscription Customer may hold in respect of the Services provided by Workflow Science (JustModel, Solo or TeamWork);

TeamWork: means that relevant Subscription Level as set out in Part 2 of Schedule 2;

Trial Period: means the period during which the Customer will receive the benefit of the Trial Services free of charge, subject to the Trial Terms;

Trial Period Commencement Date: means the first day of the Trial Period as agreed between Workflow Science and Customer;

Trial Services: means a Solo or TeamWork Subscription provided to Customer for evaluation purposes only in accordance with the Trial Terms;

Trial Terms: means those terms and conditions that apply to the Trial Services only as set out in Schedule 1;

Usage Charges: means those charges that arise as a result of Customer’s use of the Automation Service and accrue upon the execution of each task within any process activated in the Automation Service, referred to in clause 4 and set out in Schedule 4;

User(s): means Anonymous Users, Extranet Users and Authenticated Users;

VAT: means United Kingdom value added tax;

Workflow Science Indemnified Party: has the meaning set out in clause 7; and

Workflow Science IPR Claim: has the meaning set out in clause 7.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

1.2.1            the singular includes the plural and vice versa;

1.2.2            references to subclauses, clauses, Schedules or Appendices (if any) are to subclauses, clauses, Schedules or Appendices of this Agreement;

1.2.3            references to this Agreement includes the Schedules;

1.2.4            references to persons include individuals, trusts, partnerships, unincorporated bodies, government entities, companies and/or corporations (in each case whether or not having separate legal personality);

1.2.5            references to including and include(s) shall be deemed to mean respectively including without limitation and include(s) without limitation;

1.2.6            in the event and to the extent only of any conflict between the clauses and the Schedules, the clauses shall prevail (save for during a Trial Period in which case, the terms of Schedule 1 shall prevail);

1.2.7            clause and schedule headings do not affect the interpretation of this Agreement; and

1.2.8            a reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

2.                Services

2.1            In consideration of the mutual undertakings agreed under this Agreement, Workflow Science shall provide the Services to Customer for the benefit of the Customer and the Users:

2.1.1            at the Subscription Level requested by Customer from time to time;

2.1.2            with effect from the Commencement Date; and

2.1.3            in accordance with the terms and conditions of this Agreement.

3.                Use of the Services

3.1            Workflow Science hereby grants a non-transferable, non-exclusive licence for the term of this Agreement to Customer (for the benefit of Customer and its Users) to use and receive the benefit of the Services.

3.2            Prior to providing Users with access to the Services, Customer shall ensure that all Users are made aware of and are required to accept terms no less onerous than, the terms relating to use of the Services as set out in this Agreement, including their obligation to comply with any other terms applicable to the Services as may be notified by Workflow Science to Customer from time to time.

3.3            Customer shall only provide Users with access to the Services via the access method provided by Workflow Science.

3.4            Customer shall ensure that the Services may only be used in connection with Customer‘s own business purposes and that of its Associates provided that Workflow Science acknowledges and agrees that Users may access and use the Service for non-business purposes.

3.5            Except to the extent such activities are expressly agreed by the parties to this Agreement, Customer’s rights to:

3.5.1            use the Services does not permit it, or Users, to copy, cut and paste, email, reproduce, publish, distribute, redistribute, broadcast, transmit, modify, adapt, edit, abstract, create derivative works of, store, archive, publicly display, sell or in any way commercially exploit any part of the Services except to the extent the same may be necessary in connection with any permitted use of the Services;

3.5.2            benefit from the Services does not permit it to combine, merge or otherwise permit the Services (or any part of them) to become incorporated in any other program, nor arrange or create derivative works based on it;

3.5.3            benefit from the Services does not permit it to attempt to decompile (as defined in section 50B of the Copyright, Designs and Patents Act 1988) the underlying software (or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988; and

3.5.4            benefit from the Services does not permit it to observe, study or test the functioning of the underlying software (or any part of it) that is used to provide the Services, except and only to the extent that such restriction is prohibited pursuant to section 50B of the Copyright, Designs and Patents Act 1988.

3.6            Customer shall, and shall procure that the Users shall, use due care and diligence to avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, trojan horses or any other self-propagating or other such program) that may infect or cause damage to the Services or otherwise disrupt the provision of the Services.

3.7            Customer acknowledges and agrees that it shall expressly prohibit all Authenticated Users from sharing their credentials with any other person and accepts that in the event of a breach by any such Authenticated User giving rise to any additional liability in terms of Usage Charges payable by Customer, then as between Customer and Workflow Science, Customer is wholly responsible for any such liability.

3.8            Customer acknowledges and agrees that in the event that it makes any process available to Anonymous Users or Extranet Users, such act shall give rise to additional liability in terms of Usage Charges. As between Customer and Workflow Science, Customer is wholly responsible for any such liability.

3.9            Workflow Science reserves the right to monitor usage by all Users (in terms of audits) during the term of this Agreement for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Workflow Science or a third party authorised by Workflow Science. If any audit reveals that any password or other security credential has been provided to an individual that is not an Authenticated User, Customer shall, without delay, disable any such passwords and notify Workflow Science immediately.

3.10          In case of unauthorised use of the Services by Customer or a User, Workflow Science reserves the right to deny access to the Services to Customer or any User by blocking without prior notification the IP address(es) and/or disabling accounts of Customer or Users used to access the Services.

4.                Subscription Charges and payment

4.1            Customer shall pay Workflow Science the Subscription Charge relevant to Customer’s Subscription Level, in return for the receipt of the Services.

4.2            Any change to the Subscription Level shall result in a pro rata apportionment of the Service Charge across the month for which those Subscription Charges were due.

4.3            All amounts due under this Agreement are exclusive of VAT, sales or other tax applicable which shall be paid in addition by Customer at the rate and in the manner for the time being prescribed by law.

4.4            If a party fails to make any payment that is properly due to the other under this Agreement by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the annual rate of 4% a year above the base rate of the Bank of England. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.

4.5            The parties agree that Workflow Science may review and increase the Subscription Charges provided that such charges shall not be increased more than once in any 12 month period. Workflow Science shall give Customer written notice of any such increase 3 months before the proposed date of that increase. If such increase is not acceptable to Customer, it may, within 1 month of such notice being received or deemed to have been received in accordance with clause 15, terminate this Agreement by giving 1 month’s written notice to Workflow Science.

5.                Warranties

5.1            Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under this Agreement.

5.2            Workflow Science warrants to Customer that the Services conform substantially in accordance with the Documentation and will be provided with reasonable skill and care.

5.3            The warranties specified in clause 5.2:

5.3.1            shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the instructions of Workflow Science, or modification or alteration of the Services by any party other than Workflow Science other than as expressly permitted in this Agreement; and

5.3.2            are subject to Customer giving notice in writing to Workflow Science as soon as reasonably practicable upon becoming aware of the breach of warranty. When notifying Workflow Science of a breach Customer shall use its reasonable endeavours to provide Workflow Science with such documented information, details and assistance as Workflow Science may reasonably request.

5.4            Workflow Science shall use its reasonable endeavours to correct any fault arising from a breach of clause 5.2 within 90 days after notification or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the warranties set out in clause 5.2. Such remedies shall be free of charge to Customer unless the fault is found not to arise from a breach of clause 5.2, at which point Customer shall pay all reasonable and demonstrable costs and expenses associated with the fault incurred by Workflow Science.

5.5            Customer acknowledges and agrees that:

5.5.1            Workflow Science is not and cannot be aware of the extent of any potential Losses resulting from any failure by Workflow Science to discharge its obligations under this Agreement;

5.5.2            the Services have not been prepared to meet Customer‘s individual requirements and that they cannot be tested to ensure that they are error free or operate without interruption;

5.5.3            it is Customer‘s responsibility to ensure the facilities and functions of the Services meet Customer‘s requirements; and

5.5.4            Workflow Science is not responsible for any delays, delivery failures, or any other Losses resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

5.6            Workflow Science does not warrant or represent that:

5.6.1            the Services shall be uninterrupted or error free; or

5.6.2            the Services shall be interoperable with third party software or equipment; or

5.6.3            that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements.

5.7            Save to the extent set out in this clause 5 or to the extent that any exclusion is prohibited by law, no other representations, warranties or conditions, express or implied, statutory or otherwise (including as to condition, satisfactory quality, performance or fitness for purpose), are given or assumed by Workflow Science in respect of the Services and any such representations, warranties or conditions are hereby excluded.

5.8            Any warranties given by Workflow Science shall be subject to Customer using the Services in compliance with this Agreement, and Workflow Science shall not be liable under this clause for, or required to remedy, any problem arising from any defect or error wholly caused by any equipment or third party software used in conjunction with the Services or by the Service being used by Customer other than in compliance with the terms of this Agreement.

6.                Applicable Laws

6.1            Workflow Science provides the Services from the United Kingdom and does not warrant the Services will comply with any Applicable Laws which exist outside of the UK.

6.2            Customer shall comply with all Applicable Laws with respect to its activities under this Agreement.

7.                Intellectual Property Rights and indemnity

7.1            All Intellectual Property Rights in and to the Services and Documentation vest and remain vested in Workflow Science and/or its licensors.

7.2            Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services or the Documentation.

7.3            To the extent that Customer acquires any Intellectual Property Rights in the Services and/or the Documentation, Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Workflow Science. Customer shall execute all such documents and do such things as Workflow Science may consider necessary to give effect to this clause.

7.4            The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

7.5            Customer hereby grants to Workflow Science the right and licence to examine any and all processes developed by Customer arising from its use of the Services and to use such processes to enable Workflow Science to better understand the Customer community’s use of Modeller, the markets the Customer community operate in and to enable Workflow Science to act on such information and make developments and improvements to the Service.

8.                Customer Data and indemnity

8.1            Customer hereby grants to Workflow Science (and shall procure that its Users grant to Workflow Science or grant to Customer, for the benefit of Workflow Science) a royalty-free, non-transferable (save to the extent set out in this clause 8), non-exclusive licence for the term of this Agreement (together with a right for Workflow Science to sub-license the same to any third party suppliers for use on Workflow Science‘s behalf) to use Customer Data for the purposes of achieving the aims set out in this Agreement.

8.2            Customer acknowledges that Workflow Science has no control over any Customer Data hosted as part of the provision of the Services and does not purport to monitor the content of Customer Data.

8.3            Customer shall not, and shall procure that Customer Data does not, breach Applicable Law.

8.4            Customer shall not infringe any third party Intellectual Property Rights and shall procure that Customer Data does not infringe any third party Intellectual Property Rights or contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing or blasphemous, (together Infringing Data).

8.5            Workflow Science shall notify Customer immediately if it becomes aware of any allegation that any Customer Data may be Infringing Data and Workflow Science shall have the right to remove Customer Data from the Services without the need to consult Customer.

8.6            Customer shall indemnify, and keep Workflow Science, and its officers, directors, employees, agents, successors, and assignees (Customer Indemnified Party) indemnified at all times from and against any and all Losses, which are suffered by, and defend, and hold harmless against any Losses which are brought or threatened against, Customer Indemnified Party, in respect of any Infringing Data (Customer Data Claim), provided that Customer shall have no such liability if Workflow Science:

8.6.1            does not notify Customer in writing setting out full details of any Customer Data Claim of which it has notice as soon as is reasonably possible;

8.6.2            makes any admission of liability or agrees any settlement or compromise of the relevant Customer Data Claim without the prior written consent of Customer (which shall not be unreasonably withheld or delayed);

8.6.3            does not let Customer at its request and own expense have the conduct of or settle all negotiations and litigation arising from the relevant Customer Data Claim; or

8.6.4            does not, at Customer‘s request and own expense, give Customer all reasonable assistance in the circumstances described above.

9.                Data Protection

9.1            The parties acknowledge and agree that Customer shall be the Data Controller in respect of any Personal Data contained within Customer Data. To the extent that Workflow Science processes (as such term is defined in the Data Protection Act 1998) Personal Data under this Agreement, Workflow Science shall be the Data Processor in respect of any such Personal Data.

9.2            Customer shall procure that Users may not use the Service to enter any Personal Data unless or until they have accepted the terms of the Customer’s applicable privacy policy and terms of use.

9.3            Customer represents, warrants and undertakes that it has obtained all necessary consents from Users and has taken all steps necessary to enable the lawful processing of User’s Personal Data by Workflow Science (or by any third party appointed by Workflow Science for any part of such processing including for the avoidance of doubt Amazon Web Service or any other provider of hosting services) under applicable Data Protection Legislation, including for the purpose of the processing of any such Personal Data within or outside of the European Economic Area.

9.4            Customer acknowledges and agrees and shall procure that all Users give their express informed and specific consent to the transfer or storage of the Personal Data outside the European Economic Area or the country where the Customer and the Users are located and that the purpose for such transfer and storage is to enable Workflow Science to provide the Services and its other obligations under this Agreement.

9.5            Customer shall be liable for and shall indemnify (and keep indemnified) Workflow Science against all Losses incurred by Workflow Science which arise directly out of or in connection with Customer’s breach of the provisions of clauses 9.2, 9.3 and 9.4, including without limitation those Losses arising out of any third party demand, proceeding, claim or action.

9.6            In connection with the provision of the Services, the Data Processor shall:

9.6.1            process the Personal Data belonging to the Data Controller only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Data Controller from time to time;

9.6.2            process the Personal Data belonging to the Data Controller and/or its Users only to the extent, and in such manner, as is necessary for the performance of its rights and obligations under this Agreement;

9.6.3            implement appropriate technical and organisational measures to protect the Personal Data belonging to the Data Controller and/or its Users against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected;

10.              Confidential Information

10.1          Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.

10.2          Each party undertakes to:

10.2.1         disclose the other party’s Confidential Information only to those of its officers, employees, agents, professional advisers and contractors (including Workflow Science personnel) to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and

10.2.2         to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.

10.3          Each party shall give notice to the other of any unauthorised misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.

10.4          The provisions of this clause shall not apply to information which:

10.4.1         is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;

10.4.2         is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;

10.4.3         is independently developed by the recipient, without access to or use of such information; or

10.4.4         is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.

10.5          The obligations under this clause shall survive the variation, expiry or termination of this Agreement for period of five (5) years thereafter.

11.              Limits on liability

11.1          Subject to the following sub-clauses, in no event shall the aggregate liability of Workflow Science to the Customer (or any Users), including liability for breach of contract (including under any indemnity), misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising, in respect of all Losses arising under this Agreement exceed an aggregate amount of one month’s Service Charge, taken as the average monthly amount paid by Customer to Workflow Science calculated from the preceding period of twelve (12) months (or such number of months as the Customer shall have purchased if less).

11.2          Subject to clause 11.3, under no circumstances shall either party be liable to the other party (or any Users) for any of the following types of loss or damage arising under or in relation to the Agreement (whether arising for breach of contract (including under any indemnity), misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty, warranty, strict liability or any other legal theory howsoever arising):

11.2.1         loss of profits, loss of business or contracts (whether present or future), loss of anticipated savings, loss of goodwill or revenue, wasted expenditure, loss or corruption of data (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or

11.2.2         any indirect or consequential loss or damage whatsoever,

even if that party was aware of the possibility that such loss or damage might be incurred by the other.

11.3          Notwithstanding the above neither party excludes or limits any liability for:

11.3.1         personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;

11.3.2         fraud, fraudulent misrepresentation or fraudulent concealment;

11.3.3         any breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

11.3.4         any other liability to the extent the same cannot be excluded or limited by law.

11.4          The parties agree that the limitations on liability in this Agreement are reasonable given their commercial bargaining position with respect to one another, the ability to terminate the Service on one month’s notice and the ability to purchase relevant insurance in respect of risks arising under this Agreement.

12.              Force Majeure

12.1          Neither party (the ‘claiming party’) shall be liable to the other for any delay or failure to perform any of its obligations hereunder to the extent such delay or failure is due to Force Majeure provided that:

12.1.1         the claiming party could not have avoided such circumstances by taking precautions which it ought reasonably to have taken or planned for;

12.1.2         the claiming party has used and continues to use its reasonable endeavours to mitigate the consequences of such an event upon the performance of its obligations under this Agreement and to continue to perform its affected obligations;

12.1.3         the claiming party shall not be excused performance of its obligations unaffected by Force Majeure; and

12.1.4         the claiming party shall resume performance of its obligations affected by Force Majeure as soon as reasonably practicable.

12.2          The claiming party shall promptly give written notice forthwith to the other upon becoming aware of Force Majeure, which notice shall contain details of the circumstances giving rise to Force Majeure and its anticipated duration.

12.3          The corresponding obligations of non-claiming party will be suspended, and its time for performance of such obligations extended, to the same extent as those obligations of the claiming party are extended by the claiming party.

13.              Term and Termination

13.1          This Agreement shall commence on the Commencement Date and shall (subject to earlier termination pursuant to this clause 13 continue for an initial period of one (1) month. It shall thereafter continue automatically from month to month until terminated in accordance with the terms of this Agreement.

13.2          Either party shall have the right to terminate this Agreement without liability to the other party on the provision of one (1) month’s written notice to the other party.

13.3          Either party may, without prejudice to its other rights and remedies, by notice in writing to the other party immediately terminate this Agreement if the other:

13.3.1         is in material or persistent breach of any of its obligations under this Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach; or

13.3.2         is the subject of an Insolvency Event.

14.              Exit and return of Customer Data

14.1          In the event of termination of this Agreement for any reason:

14.1.1         the right to access the Services provided under this Agreement shall terminate immediately;

14.1.2         all provisions of this Agreement shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

14.2          On the termination or expiry of this Agreement, Workflow Science shall at the cost of Customer return (at Customer‘s option) all Customer Data in an agreed format.

15.              Notices

15.1          Any notice or other communication given to a party under or in connection with the Agreement (a ‘Notice‘) shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.

15.2          A Notice shall be deemed to have been received:

15.2.1         if delivered personally: when left at the address referred to in clause 15.1 (Notices);

15.2.2         by first-class post: two Business Days after posting;

15.2.3         by airmail: seven Business Days after posting;

15.2.4         by hand: on delivery;

15.2.5         by e-mail: on receipt of a read receipt email from the correct address or within 24 hours from delivery if no notice of delivery failure is received.

15.3          The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.              Entire agreement

16.1          The parties agree that this Agreement and any documents referred to in it or entered into pursuant to it constitute the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral, in respect of its subject matter.

16.2          Each party acknowledges that in entering into this Agreement it has not relied upon any oral or written statements, collateral or other warranties, assurances, undertakings or representations which were made by or on behalf of the other party in relation to the subject-matter of this Agreement at any time before its signature, other than those which are set out expressly in this Agreement.

16.3          Each party hereby waives all rights and remedies which might otherwise be available to it in relation to any statements or other representations made under clause 16.1, but for clause 16.4.

16.4          Nothing in this clause shall exclude or restrict the liability of either party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.

17.              General

17.1          Any variation to the Agreement, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by an authorised signatory of each party.

17.2          In respect of any indemnity given by either party under this Agreement, the party which receives the benefit of the indemnity shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.

17.3          Nothing in this Agreement shall (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.

17.4          For the purposes of the Contracts (Rights of Third Parties) Act 1999, this Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.

17.5          The Customer may not assign, novate, transfer, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the prior written consent of Workflow Science.

17.6          If there is a conflict between the terms of this Agreement and the terms of the Modeller EULA and/or the Portal Terms of Use, the terms of this Agreement will prevail and the terms of Modeller EULA will prevail over the Portal Terms of Use.

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

17.8          A waiver of any right under this Agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.

17.9          Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

17.10        All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.

17.11        Each party will, at its own cost, do all further acts and execute all further documents necessary to give effect to this Agreement.

18.              Disputes

18.1          If either party has any dispute with the other in connection with this Agreement, then that party will promptly give full written particulars of the dispute to the other party, and the parties will, within seven (7) days of delivery of those particulars, meet and in good faith try to resolve the dispute.

18.2          If the dispute is not resolved within seven (7) days of written particulars being given to the parties (or any longer period agreed to by the parties) the dispute shall be escalated to the Managing Director of Workflow Science and an appropriately senior Customer representative (the Escalation Committee) for resolution.

18.3          If within seven (7) days of the dispute being referred to the Escalation Committee the dispute is not resolved the parties shall consider whether the dispute should be referred to an alternative dispute resolution procedure (including mediation, arbitration or binding expert determination). If the parties do not agree that the dispute should be referred to an alternative dispute resolution within seven (7) days of a failure to resolve the dispute at the Escalation Committee in accordance with this clause 18, either party shall be entitled to commence proceedings in court.

18.4          Nothing in this clause shall prejudice the right of either party to:

18.4.1         apply to Court for interim relief to prevent the violation by the other party of any proprietary interest, or any breach of the other party’s obligations which could cause irreparable harm to the first party; or

18.4.2         bring proceedings intended to result in the enforcement of a settlement agreement entered into between the parties in accordance with the foregoing provisions of this clause 18 or otherwise.

19.              Governing law and jurisdiction

19.1          This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England.

19.2          The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1 Trial Terms

1.                Background

1.1            Workflow Science agrees to grant to Customer, on the terms of this Schedule, a temporary right to use the Services for evaluation purposes.

1.2            The definitions in clause 1.1 of the Agreement shall apply to this Schedule.

1.3            In the event of any conflict between the terms of this Schedule and the Agreement, the terms of this Schedule shall prevail.

2.                Duration of trial

The Services provided pursuant to this Schedule shall commence on the Trial Period Commencement Date and shall expire after a period of 60 days (Trial Period).

3.                Rights granted

3.1            In consideration of the potential purchase of the Services in accordance with the Agreement (the receipt and sufficiency of which Workflow Science acknowledges) Workflow Science shall supply to Customer the Trial Services during the Trial Period.

3.2            Workflow Science grants to Customer a non-exclusive and non-transferable right to use the Trial Services for evaluation purposes only. This right may not be sublicensed or sold to any other person. This right is subject to other restrictions on use in paragraph 4.

4.                Use

4.1            Customer shall not use the Services contrary to any restriction stated in this Schedule, or otherwise in a way that is not expressly permitted by this Schedule.

4.2            Except to the extent such activities are permitted by applicable English law or agreed in writing between the parties, Customer shall not:

4.2.1 sell or otherwise deal in or encumber the Trial Services or any modification, addition or enhancement to them; or

4.2.2 translate, adapt, disassemble, reverse engineer or decompile the Services (or any part of them or it) (save as may be permitted by applicable law), nor make any modifications, additions or enhancements to it, nor make any modifications, additions or enhancements to them or it.

5.                Upgrade

5.1            Should Customer during the Trial Period wish to upgrade from a Solo to TeamWork Subscription, Customer shall submit an upgrade request using the Portal.

5.2            For the avoidance of doubt, no further upgrades or downgrades shall be available to Customer during the Trial Period.

6.                Limits on liability

6.1            Save for death and personal injury caused by Workflow Science’s negligence and save for any liability for fraud or fraudulent misrepresentation and for any other liability that cannot be excluded or limited at law, Workflow Science shall have no liability of any kind in any circumstances whatever to Customer in respect of the Trial Service.

6.2            The parties agree that the exclusions of liability in this Schedule are fundamental to the Schedule and are reasonable given that the Trial Service is provided for free and for a limited period of time.

7.                Warranties

7.1            Customer acknowledges and agrees that:

7.1.1 Workflow Science is not and cannot be aware of the extent of any potential Losses resulting from any failure by Workflow Science to discharge its obligations under this Agreement; and

7.1.2 the Trial Services have not been prepared to meet Customer’s individual requirements and that they cannot be tested to ensure that they are error free or operate without interruption.

7.2            During the Trial Period, Workflow Science does not warrant or represent that the Services shall be:

7.2.1 of satisfactory quality;

7.2.2 uninterrupted or error free;

7.2.3 compatible with third party software or equipment, except where expressly indicated to the Customer in permanent form.

7.3            All other warranties and representations in respect of the Trial Services, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.

8.                Intellectual Property Rights

8.1            Except for Customer‘s right to use the Trial Services as expressly granted above, Customer shall not acquire in any way, any title, rights of ownership or Intellectual Property Rights of whatever nature in the Trial Services and no Intellectual Property Rights of either party are transferred or licensed as a result of this Schedule.

9.                Termination

9.1            Either party may, without prejudice to its other rights and remedies, by email or other electronic notice immediately terminate the Trial Services provided pursuant to this Schedule if the other:

9.1.1 is in material or persistent breach of any of its obligations under this Schedule; or

9.1.2 is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.

9.2            In the event that this Schedule is terminated for any reason, Workflow Science shall immediately disable the Trial Service such that Customer shall cease to have access to the Trial Service with immediate effect.

10.              General

10.1          Customer may not assign, subcontract or encumber any right or obligation under this Schedule, in whole or in part

10.2          No amendment or variation of this Schedule will be valid unless such changes are agreed and executed in writing by an authorised signatory of each party.

10.3          Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.

Schedule 2      THE Services

Part 1 Services Outline

1.                Services

1.1            The Automation Service, when used in conjunction with the Modeller and Portal, enables Customer to model and automate business processes and make available such processes to Users and engaged such Users within processes. Further, Customer is able to monitor running of processes leading to optimisation and improvement in efficiency.

1.2            Services will include all error corrections, patches, fixes, updates, upgrades, new releases or new versions subsequently received (if any).

Part 2 Subscription Levels

1.                JUSTMODEL Subscription

1.1            JustModel is a single user service focused on the modelling of business processes.

1.2            The JustModel service offering comprises the following components:

1.2.1 Modeller; and

1.2.2 use of the Automation Service (subject to limitations as set out in paragraph 1.5 below).

1.3            The JustModel service allows Customer to model processes and define resources and stores.

1.4            Customer shall be able to store process models, resource and store definitions securely in the cloud (via Automation Service).

JustModel Limitations

1.5            The JustModel service does not provide the ability for Customer to:

1.5.1 activate and run processes on the Automation Service; or

1.5.2 model their organisation.

1.6            Customer shall be able to upgrade from the JustModel service to either the Solo or TeamWork subscription services.

2.                Solo Subscription

2.1            Solo is a single user service supporting the modelling and automation of business process with limited support for human workflows and human work assignment.

2.2            The Solo subscription service offering comprises the following components:

2.2.1 Modeller;

2.2.2 use of the Automation Service (subject to limitations as set out in paragraph 2.6 below); and

2.2.3 use of the Portal.

2.3            The Solo subscription service allows Customer to model processes and define resources and stores and to activate, run and manage their processes on the Automation Service via the Portal.

2.4            Customer shall be able to store process models, resource and store definitions securely in the cloud (via Automation Service).

2.5            Customer shall be able to access human work assigned by their activated processes via the Portal.

Solo Limitations

2.6            The Solo service does not provide the ability for Customer to:

2.6.1 model their organisation; or

2.6.2 to create additional Authenticated Users as Solo permits one Authenticated User only.

2.7            Customer shall be able to upgrade from the Solo subscription service to the TeamWork subscription service.

3.                TeamWork Subscription

3.1            TeamWork is a multi-user service supporting the modelling and automation of business process and human workflows and human work assignment.

3.2            The TeamWork subscription service offering comprises the following components:

3.2.1 Modeller;

3.2.2 use of the Automation Service;

3.2.3 use of the Portal.

3.3            The TeamWork subscription is as per the Solo subscription with the addition of organisation modelling, unlimited Authenticated User creation and full support for human workflows and work assignment.

3.4            Customer shall be able to downgrade from the TeamWork subscription service to the Solo subscription service.

4.                Trial Period

4.1            Customer shall have the benefit of either the Solo or TeamWork subscription detailed in paragraphs 2 and 3 above, subject to the terms of Schedule 1 (Trial Terms).

4.2            The Trial Period shall be free of charge.

Schedule 3     Applications

Part 1 Modeller

1.1            Available to JustModel, Solo and TeamWork subscribers, the Modeller is Workflow Science’s unique process modelling application that Customer downloads and install on a Windows or Mac computer. It allows Customer to create processes, resources and define information flows in an intuitive easy-to-use, drag-and-drop graphical environment without requiring any IT or technical expertise.

The Modeller supports full team working, access rights and version management.

1.2            Customer must accept the terms of the Modeller EULA prior to installing Modeller on their computer hardware.

Part 2 Portal

1.1            Available to Solo and TeamWork subscribers only, the Portal is a web application accessed via a standard web browser. It connects to the Automation Service and enables Customer to view and manage processes, create and administer Authenticated Users, access reports, analytics and business intelligence. The Portal is where Authenticated Users access the tasks allocated to them by your running processes.

1.2            Customer must accept the Portal Terms of Use prior to using the Portal.

Schedule 4     Subscription Charges

Part 1 Service Charges

1.1            Details of the Service Charges are available at www.workflow-science.com/subscription-charges.

Part 2 Usage Charges

1.1            Details of the Usage Charges are available at www.workflow-science.com/subscription-charges.

© Workflow Science Limited September 2015