IMPORTANT NOTICE: THESE CONDITIONS GOVERN YOUR USE OF THE SUBSCRIPTION SERVICES AND LIMIT OUR LIABILITY TO YOU. PLEASE READ THESE CONDITIONS CAREFULLY BEFORE PURCHASING THE SUBSCRIPTION SERVICES.

YOUR ATTENTION IS DRAWN IN PARTICULAR TO CONDITION 7.5 and 7.6 (DELETION OF CUSTOMER DATA ON TERMINATION)

PATGuard Cloud Platform – Conditions (Basic, Standard and Business Tiers)

References to “you” and “your” or the “Customer“, in these Conditions, are to you, the individual, firm or company named when you register to use the Subscription Services. If you have subscribed to the Subscription Services on behalf of a company you warrant and represent that you are authorised to do so. If you have any questions please email us at [email protected].

All our offers, deliveries and services are solely intended for businesses, traders, and legal entities, as well as legal entities under public law and public sector bodies, acting in the course of their commercial or professional activities. They are not intended for consumers or private individuals acting for personal purposes.

1. Interpretation

1.1. The definitions and rules of interpretation in this condition apply in these Conditions.

1.2. Condition, schedule and paragraph headings shall not affect the interpretation of this Contract.

1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.7. A reference to “writing” or “written” includes e-mail.

2. Information about us and you

2.1. The Subscription Services are provided by Seaward Electronic Limited, a company incorporated in the United Kingdom under company number 01674384 with its registered office at 18 Bracken Hill, South West Industrial Estate, Peterlee Co Durham, SR8 2SW (“or “we“, “us” or “our“).

2.2. You confirm and acknowledge that you have provided us with accurate and complete registration information and that it is your responsibility to update us in respect of any changes to that information by emailing [email protected].

3. Sign up process and licence

3.1. The Contract between us comes into effect and these Conditions become binding when we issue a written confirmation of your order.

3.2. To place an Order you must complete the online sign-up process for the Subscription Services on our website at https://patguardcloud.com/, submit the required registration information and pay the associated Subscription Fees. This process will require you to tick that you accept these Conditions. By ticking this box and paying the Subscription Fees, you agree to these Conditions, SLA and Terms of Use.

3.3. If we accept your Order, we will issue a written order confirmation in respect of it, at which point a contract exists between us for your use of the Subscription Services.

3.4. When placing an Order, you must confirm the number of User Licenses you want to purchase, and the relevant PATGuard Cloud Platform Tier you want to subscribe for. All User Licenses must be at the same PATGuard Cloud Platform Tier.

3.5. Subject to you purchasing the User Licenses in accordance with these Conditions, payment of the Subscription Fees and compliance at all times with these Conditions, we grant you a non-exclusive, non-transferable right, without the right to grant sublicences, to permit your Authorised Users to use the User Licenses, Subscription Services during the Subscription Term solely for your internal business operations.

3.6. The rights provided under this condition are granted to you only (being the Customer named in the Order), and shall not be considered granted to any of your subsidiary or holding companies, affiliates or any other grouped or linked entities.

4. Your use rights

4.1. In relation to the User Licenses, you undertake to us that:

4.1.1. the maximum number of Authorised Users that you authorise to access and use the Subscription Services shall not exceed the number of User Licenses you have purchased from time to time;

4.1.2. you will not allow any User License to be used by more than one Authorised User at the same time;

4.1.3. each Authorised User shall keep a secure password for their use of the User License and PATGuard Cloud Platform and such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;

4.1.4. you will permit us and our designated auditor(s) to audit the Subscription Services in order to establish the name and password of each Authorised User and our data processing facilities to audit compliance with these Conditions;

4.1.5. if any of the audits referred to in Condition 4.1.4 reveal that any User Licenses have been used outside of the above use rights, then without prejudice to our other rights, we may disable those User Licenses and if you have underpaid Subscription Fees to us, then without prejudice to our other rights, you shall pay to us an amount equal to such underpayment as calculated in accordance with the prices chargeable by us for the relevant User License for that PATGuard Cloud Platform Tier as at the date of the breach. We may suspend your access to the PATGuard Cloud Platform in its entirety, until such time as we have received all underpayments in full.

4.2. You will not access, store, distribute or transmit any viruses, or any material during the course of your use of the Subscription Services, to or via the PATGuard Cloud Platform or access, store, or distribute any material that: (i) is unlawful, harmful, threatening, defamatory, obscene (including any sexually explicit images, promotion of violence), is discriminatory), infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity or; (iii) is otherwise illegal or causes damage or injury to any person or property, and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this condition.

4.3. You shall not: (i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Subscription Services in any form or media or by any means; or (ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Subscription Services; or (iii) access all or any part of the Subscription Services in order to build a product or service which competes with the Subscription Services and/or the PATGuard Cloud Platform; or (iv) use the Subscription Services to provide services to third parties; or (v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services available to any third party except the Authorised Users, or (vi) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services, other than as provided under this Condition 3.

4.4. You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and, in the event of any such unauthorised access or use, promptly notify us.

5. Changing your subscription

5.1. You may, from time to time during any Subscription Term, request to purchase additional User Licenses in excess of the number in your initial Order and/or change PATGuard Cloud Platform Tier.

5.2. If you wish to purchase additional User Licenses and/or change PATGuard Cloud Platform Tier you will notify us by raising a ticket on the PATGuard Cloud Platform. Where we agree to such a request, we will grant access to the Subscription Services to such additional Authorised Users in accordance with the provisions of this Contract and only once payment has been made for the revised Subscription Fees.

5.3. Subject to us having received payment for those User Licenses. If you order User Licenses part way through a month, you will be required to pay the full monthly charge for those User Licenses.

6. Subscription Services

6.1. We shall, during the Subscription Term, provide the Subscription Services to you on and subject to the terms of this Contract.

6.2. We shall use commercially reasonable endeavours to make the PATGuard Cloud Platform available pursuant Paragraph 2 of Schedule 1 (PATGuard Cloud Platform Availability).

6.3. We will, as part of the Subscription Services and at no additional cost to you, provide you with Support Services in accordance with the PATGuard Cloud Platform Tier that you selected in your Order. Subscription Services under each PATGuard Cloud Platform Tier will be carried out in accordance with Paragraph 4 of Schedule 1 (PATGuard Cloud Platform Tiers).

6.4. For the avoidance of doubt, you acknowledge and agree that the Subscription Services do not include:

6.4.1. any development of the PATGuard Cloud Platform including but not limited to software modifications, enhancements, or new configurations of existing applications that are not related to the resolution of incidents experienced by users of the PATGuard Cloud Platform;

6.4.2. any analysis IT services not related to identified bugs in the PATGuard Cloud Platform; or

6.4.3. any user training.

7. Customer data

7.1. You shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

7.2. You hereby grant to us a perpetual, non-exclusive, transferable, irrevocable worldwide, sub-licensable licence to host the Customer Data and use it to provide the Subscription Services; to access, view and manipulate the Customer Data and use the Customer Data for the purpose of providing other users of the PATGuard Cloud Platform or any other third parties, whether on commercial or non-commercial terms, with anonymised Customer Data, for the purpose of creation by us or by that third party of reports, benchmarking information, and other analyses based on the anonymised Customer Data (for example, to prepare a benchmarking report of how businesses in a particular sector are managing testing processes).

7.3. You acknowledge and agree that it is the responsibility of the Customer to maintain and secure its own back up of all Customer Data.

7.4. In the event of any loss or damage to Customer Data, your sole and exclusive remedy against us shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).

7.5. Upon termination of the Contract, whether by cancellation, expiration, non-payment of the Subscription Fees or on expiry of any free trial period, we will permanently delete all Customer Data from the PATGuard Cloud Platform within 30 days following such termination for trial and monthly standard and business accounts. For annual standard and business accounts this period is 90 days. You acknowledge and agree that after this period, Customer Data will be irretrievable and cannot be recovered by either you or us. It is the Customer’s sole responsibility to export any Customer Data prior to termination of the Contract (where applicable). We shall not be liable for any loss of Customer Data resulting from the termination of the Contract in accordance with this Condition 7.5.

7.6. For the avoidance of doubt, if the Customer re-subscribes to the Subscription Services after 30 days following such termination, any Customer Data submitted, stored, or otherwise uploaded to the PATGuard Cloud Platform during a prior subscription. Contract will not be recoverable.

7.7. We shall, in providing the Subscription Services, comply with our Privacy Policy relating to the privacy and security of the Customer Data available at https://patguardcloud.com/privacy-policy/ or such other website address as may be notified to you from time to time, as such document may be amended from time to time by us in our sole discretion.

7.8. Both parties will comply with all applicable requirements of the Data Protection Legislation. This Condition 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

7.9. If we process any personal data as part of the Customer Data on your behalf when performing our obligations under the Contract, we each hereby record our intention that you shall be the data controller and we shall be a data processor and in any such case:

7.9.1. you acknowledge and agree that the personal data may be transferred or stored outside the EEA or the country where you, the Authorised Users, or your own clients are located in order to carry out the Subscription Services and our other obligations under the Contract;

7.9.2. you shall ensure that you are entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with the Contract on your behalf;

7.9.3. you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

7.9.4. we shall both take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

7.10. Without prejudice to the generality of Condition 7.6, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of this Contract so that we may lawfully use, process and transfer the personal data in accordance with these Conditions on your behalf.

7.11. Without prejudice to the generality of Condition 7.6, we shall, in relation to any personal data processed in connection with the performance by us of our obligations under this Contract:

7.11.1. process that personal data only on your documented written instructions of unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying you;

7.11.2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:

7.11.2.1. you or us have provided appropriate safeguards in relation to the transfer;

7.11.2.2. the data subject has enforceable rights and effective legal remedies;

7.11.2.3. we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

7.11.2.4. we comply with reasonable instructions notified to us in advance by you with respect to the processing of the personal data;

7.11.3. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

7.11.4. notify you without undue delay on becoming aware of a personal data breach; and

7.11.5. at your written direction of you, delete or return personal data and copies thereof to you on termination of the Contract unless required by Applicable Law to store the personal data.

7.12. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).

7.13. Either party may, at any time on not less than 30 days’ notice, revise this Condition 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to these Conditions).

8. Third party providers

8.1. You acknowledge that the Subscription Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by you, with any such third party.

8.2. Any contract entered into and any transaction completed via any third-party website is between you and the relevant third party, and not us, and is subject to the Third Party Terms. We recommend that you refer to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  We do not endorse or approve any third-party website nor the content of any of the third-party website made available via the Subscription Services.

9. Our obligations

9.1. We undertake that the Subscription Services will be performed substantially in accordance with these Conditions and with reasonable skill and care.

9.2. The undertaking at Condition 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Subscription Services contrary to our instructions, or modification or alteration of the Subscription Services by any party other than us or our duly authorised contractors or agents. If the Subscription Services do not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in Condition 9.1. Notwithstanding the foregoing, we:

9.2.1. do not warrant that your use of the PATGuard Cloud Platform will be uninterrupted or error-free; or that the Subscription Services, and/or the information obtained by you through the Subscription Services will meet your requirements; and

9.2.2. we are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the PATGuard Cloud Platform may be subject to limitations, delays and other problems inherent in the use of such software platforms.

9.3. The Contract shall not prevent us from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

9.4. We warrant that we have and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this

10. Your obligations

10.1. You shall:

10.1.1. provide us with:

10.1.1.1. all necessary co-operation in relation to this Contract; and

10.1.1.2 .all necessary access to such information as may be required by us;

in order to provide the Subscription Services, including but not limited to Customer Data, security access information and configuration services;

10.1.2. without affecting its other obligations under these Conditions, comply with all applicable laws and regulations with respect to its activities under these Conditions;

10.1.3. carry out all other responsibilities set out in this Contract in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;

10.1.4. ensure that the Authorised Users use the Subscription Services in accordance with this Contract and be responsible for any Authorised User’s breach of this Contract;

10.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under this Contract, including without limitation the Subscription Services;

10.1.6. ensure that its network and systems comply with the relevant specifications provided by us from time to time; and

10.1.7. be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.

11. Charges and payment

11.1 You are required to pay the Subscription Fees to us in accordance with this Condition 11.

11.2 When completing your Order, you will be required to provide us with valid, up-to-date and complete credit card details or debit card details and complete contact and billing details and you hereby authorise us to bill such credit or debit card with immediate effect for the first month’s Subscription Fees, and then on an ongoing monthly basis for each month’s Subscription Fees (payment for further months Subscription Fees can be taken on any date during the relevant calendar month). In the event that payment of the Subscription Fees is not successfully received, we reserve the right to suspend access to the Subscription Services until the Subscription Fees are received in full.

11.3 All payments are made via a third-party payment processor (currently Stripe), and all processing of payments are subject to the terms and conditions and privacy policy of Stripe or such alternative payment provider. You agree to create and maintain a valid Stripe account or provide necessary payment details to facilitate transactions through Stripe, or such alternative payment provider as we notify from time to time. You are responsible for accepting and agreeing to all third party terms of Stripe or alternative payment providers, and we accept no liability for these payment services provided.

11.4 If we have not received payment by the due date for payment, and without prejudice to any of our other rights and remedies we may, without liability to you, disable your passwords, accounts and access to all or part of the Subscription Services and we shall be under no obligation to provide any or all of the Subscription Services while the invoice(s) concerned remain unpaid; and interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6% over the then current base lending rate of the Bank of England base rate, from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

11.5 All Subscription Fees shall be payable in one of the following currencies: Pounds Sterling (GBP), United States Dollars (USD), Australian Dollars (UAD) or Euros (EUR), depending on the currency used at the time of the Customer’s initial Order for the Subscription Services. The applicable currency is determined by the website through which the Customer completed the purchase of the Subscription Services and shall remain the designated payment currency for all future Subscription Fees under the Contract.

11.6 All Subscription Fees, charges and payments to us are non-cancellable and non-refundable and are exclusive of value added tax, which shall (where relevant and subject to a valid VAT invoice) be added at the appropriate rate.

11.7 We shall be entitled to increase the Subscription Fees in respect of your then existing subscription no more than once in each calendar year, upon giving you at least 90 days’ prior notice by email.

12. Proprietary rights

12.1. You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Subscription Services. Except as expressly stated herein, this Contract does not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Subscription Services.

12.2. We confirm that we have all the rights in relation to the Subscription Services that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Contract

12.3. You must use the latest version of the PATGuard Cloud Platform and accept all updates to the PATGuard Cloud Platform. We do not customise the PATGuard Cloud Platform to specific customers.

12.4. Your licence under these Conditions is not exclusive. We may perform services for your competitors or for other parties whose interests may conflict with yours. We will comply with our obligations under Condition 16.1 (Confidentiality).

13. Deliverables

13.1 We may from time to time and as part of the Subscription Services described, provide you with Deliverables. You acknowledge that all Deliverables created are based on Customer Data, and the Deliverables which we produce will accurately reflect the Customer Data. However, we accept no responsibility for checking the accuracy or completeness of Customer Data, and therefore the factual accuracy of the Deliverables.

13.2. You are responsible for checking and ensuring the factual accuracy and completeness of all Customer Data and for liaising with Authorised Users as required.

13.3. You acknowledge that you will not gain any right, title or interest in any Trade Marks or associated goodwill, which shall accrue automatically to us. All goodwill arising in relation to the use of the Trade Marks shall accrue to the Licensor.  Upon request, the Licensee shall execute all documents requested by the Licensor in order to confirm this.

13.4. You shall ensure that all relevant Trade Marks and acknowledgements of our rights in and to the Trade Marks and authorship of the Deliverables are not removed from any of the Deliverables.

14. Limitation of liability

14.1. You acknowledge that the Subscription Services are not a substitute for professional judgment and common sense, and that you are responsible for determining whether or not the Subscription Services are suitable for your own use and particular requirements. The PATGuard Cloud Platform has been developed for multiple types of user, and is a standard product. It is therefore not developed to meet your requirements, and you are responsible for ensuring it does meet your requirements before you decide to place an order for the Subscription Services.

14.2. Except as expressly and specifically provided in these Conditions:

14.2.1. you assume sole responsibility for results obtained from the use of the Subscription Services by you, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Subscription Services, or any actions taken by us at your direction;

14.2.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and

14.2.3. the PATGuard Cloud Platform is provided to you on an “as is” basis.

14.3. Nothing in these Conditions excludes our liability for:

14.3.1. death or personal injury caused by our negligence; or

14.3.2. for fraud or fraudulent misrepresentation.

14.4. Subject to Condition 14.1 and Condition 14.3:

14.4.1. we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Contract; and

14.4.2. our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Subscription Fees paid during the Contract Year in which the defaults occurred, and if defaults committed in more than one Contract Year give rise to a single claim or series of connected claims, then our total liability for those claims shall not exceed the single highest annual cap for those Contract Years.

15. Term and termination

15.1. The term of the Subscription and our agreement with you shall commence on the Effective Date and shall continue for the Minimum Term after which it shall renew automatically for successive periods of one calendar month (each a “Renewal Term“), until terminated by either party in accordance with the provisions of this Condition 15.

15.2. The Minimum Term together with any subsequent Renewal Terms shall together constitute the “Subscription Term“.

15.3. This Contract shall, unless otherwise terminated in accordance with its terms continue until you give us written notice of your intention to terminate it. You may give written notice to terminate at any time following expiry of the Minimum Term, but such notice shall only be effective on the last day of the calendar month in which your notice is received by us. The duration of this Contract shall be referred to as the “Subscription Term”.

15.4. We may, in our sole discretion, allow you to register for a free trial of the Subscription Services. Where we do so, we will make the Subscription Services available to you on a trial basis free of charge for the duration we specify to you by email to the email address used to sign up for the free trial (“Trial Period”). Your access to and use of the Subscription Services will automatically terminate at the end of the Trial Period unless you purchase a paid subscription. To purchase a paid subscription and continue using the Subscription Services, you can either use the payment link in our email notification to you (which is likely to be received in or around the expiry of the Trial Period) to make payment, or you can log into our website using the email address associated with your trial account and follow the instructions to pay for the Subscription Services. Where you do not sign up for paid Subscription Services on the expiry of a Trial Period, all Customer Data associated with trial accounts will be inaccessible and subsequently deleted after 30 days. Subject to clause 14.3 (liability that cannot be excluded), access to Subscription Services within a Trial Period is provided ‘as is’ and without warranty of any kind. We may terminate or modify the Trial Period at any time without notice and without liability.

15.5. Without affecting any other right or remedy available to it, we may terminate this Contract with immediate effect by giving written notice to you if:

15.5.1. you fail to pay any amount due under this Contract on the due date for payment and remain in default not less than 5 days after being notified in writing to make such payment;

15.5.2. you commit a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fail to remedy that breach within a period of 10 days after being notified in writing to do so;

15.5.3. you repeatedly breach any of the terms of this Contract in such a manner as to reasonably justify the opinion that conduct is inconsistent with you having the intention or ability to give effect to the terms of this Contract;

15.5.4. you are, or we suspect that you are, unable to pay your debts as they fall due or admit your inability to pay your debt or are deemed unable to pay your debt within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

15.5.5. you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your;

15.5.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up;

15.5.7. 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 you;

15.5.8. the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;

15.5.9. a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;

15.5.10. a creditor or encumbrancer you attach 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 your assets and such attachment or process is not discharged within 14 days;

15.5.11. you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of its business; or

15.5.12. you suffer a “change of control” (as defined in section 1124 of the Corporation Tax Act 2010)

15.6. On termination of this Contract for any reason:

15.6.1 all licences granted to you under these Conditions shall immediately terminate and you shall immediately cease all use of the Subscription Services;

15.6.2 your access to the PATGuard Cloud Platform shall cease automatically, and you are responsible for ensuring you have retained a copy of all Customer Data that you have inputted via the PATGuard Cloud Platform;

15.6.3 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

15.6.4 we may destroy or otherwise dispose of any of the Customer Data in our possession. You are responsible for retaining your own copy and backup of any Customer Data. Where you request a back-up copy of the Customer Data post termination, we may provide this at our discretion subject to our agreement to do so and you paying all reasonable expenses incurred by us in returning the same; and

15.6.5. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.

16. General

16.1. Confidentiality. Each of us undertakes that we will not at any time during the Contract, and for a period of five years after termination or expiry of the Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients, or suppliers of the other party, save that each party may disclose Confidential Information: (i) to its employees, officers, representatives and advisers who need to know such information for the purposes of the Contract; (ii) as required by law, a court of competent jurisdiction or any governmental or regulatory authority. Each of us shall only use Confidential Information for the purposes of this Contract.

16.2. Force Majeure. We will have no liability to you under the Contract if we are prevented from or delayed in performing our obligations, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport or telecommunications network, hack or attack on the PATGuard Cloud Platform including a distributed denial of service attack or man in the middle attack, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration.

16.3. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.4. Announcements. No party shall make, or permit any person to make, any public announcement concerning these Conditions without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

16.5. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

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

16.7. If any provision (or part of a provision) of this Contract 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.

16.8. Entire Agreement. The Contract constitutes the whole agreement between us and supersedes any previous arrangement, understanding or agreement between us relating to the subject matter it covers. We both acknowledge and agree that in entering into the Contract neither of us relies on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Contract or not) relating to the subject matter of the Contract, other than as expressly set out in this Contract.

16.9. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any your rights or obligations under the Contract. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

16.10. No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between us, or authorise either of us to act as agent for the other, and neither of us shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16.11. Third party rights. The Contract does not confer any rights on any person or party (other than each of us and, where applicable, each of our successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

16.12. Notices. Any notice required to be given under this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the addresses set out for each of us in the Proposal, or such other address as may have been notified for such purposes in accordance with this condition. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first UK Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

16.13. Governing law and Jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. We both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Notwithstanding the foregoing, we reserve the right to bring proceedings against you in the courts of the country in which you reside or conduct your business, where such action is necessary to enforce our rights under the Contract.

Schedule 1 Service Level Agreement

1. Definitions

2. PATGuard Cloud Platform Availability

2.1. We will at all times during the Subscription Term maintain the following service levels for the PATGuard Cloud Platform:

2.1.1. PATGuard Cloud Platform Availability Service Level: We will provide 99% Platform Availability, excluding any Platform Maintenance or Force Majeure Events (as defined below) that result in the PATGuard Cloud Platform not being available to the customer, as measured and monitored from the Supplier’s facilities. Platform Availability will be calculated on a monthly basis using the following formula: Actual Availability divided by Total Scheduled Availability) multiplied by 100%.

3. Support Services and Reporting

3.1. Support Services for the PATGuard Cloud Platform are provided and performed by the Supplier (and its sub-contractors where applicable) to the Customer exclusively through the PATGuard Cloud Platform (and email where applicable) and within Normal Business Hours.

3.2. Where you require Support Services, you must raise a ticket within the PATGuard Cloud Platform (“Support Request“). Each Support Request must include detailed information about the issue, including but not limited to:

3.2.1. the date and time when the issue occurred;

3.2.2. a clear description of the issue or request;

3.2.3. any relevant error messages or screenshots;

3.2.4. the impact on the Customer’s operations.

3.3. Response times to Support Requests commence only upon receipt of a complete Support Request. If a Support Request is received outside of Normal Business hours, it will be deemed received at the start of the next Business Day.

3.4. Your attention is drawn to the fact that a “Business Day” is a day other than a Saturday, Sunday or public or bank holiday in England or Australia and “Normal Business Hours” are 9.00 am to 5.00 pm local time in Australia, on each Business Day.

3.5. We will determine the severity of a Support Request in accordance with the table below and endeavour to acknowledge and provide a resolution to the Support Request within the time frame set out below:

3.6. Our ability to resolve support requests is dependent on your co-operation with the following:-

3.6.1. timely End User communication and support;

3.6.2. triage to identify incidents as requiring ‘fixes’;

3.6.3. collation and provision of information that we may reasonably request from time to time such as data and screen grabs that enable the provider to understand an issue;

3.6.4. reasonable availability of customer representative(s) when resolving a service-related incident or request.

4. Out of scope

4.1. This SLA does not cover:-

4.1.1. Application development (software modifications, enhancements or new configurations);

4.1.2. Analysis of services not related to identified bugs;

4.1.3. User training.

5. PATGuard Cloud Platform Tiers

5.1. We offer four PATGuard Cloud Platform Tiers; “Basic”, “Standard”, “Business” and “Enterprise”, each with varying levels of functionality, support and service entitlements. The specific PATGuard Cloud Platform Tier applicable to you will be as selected by you when placing your Order and will determine the scope of services available to the Customer, including (but not limited to) access to features within the PATGuard Cloud Platform.

5.2. You acknowledge and agree that your access to the Subscription Services is subject to the limitations and entitlements of your PATGuard Cloud Platform Tier.

5.3. Each PATGuard Cloud Platform Tier shall have the following functionality and specifications: