Application Service Provider Agreement

Unless expressly stated otherwise the following definitions shall apply to the terms used in this Agreement:

Customer	The person acquiring and using the Services from Implemetric Solutions Ltd, company number 04886918 ("Implemetric")
Customer Data	means any data created supplied or processed by the Customer for use in conjunction with the Software and the Services;
Commencement Date	means the earlier of either: - the date from which the Services are accessed; or - the date upon which the Customer makes payment of the Initial Payment.
Computer Virus	means any programs or data incorporated into software or data that disrupts the proper operation of a computer hardware system or the associated software;
Confidential Information	means all information in whatsoever form relating to Implemetric or the Customer, or the business, prospective business, technical processes, computer software (both source code and object code) Intellectual Property Rights or finances of Implemetric or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party's possession by virtue of its entry into this Agreement or the provision of the Services, including without limit Customer Data, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
Expenses	means the out of pocket expenses incurred by Implemetric in acquiring anything reasonably necessary for it to perform the requirements imposed on it by this Agreement;
Initial Payment	means a sum to be paid by the Customer to Implemetric in respect of the Initial Period as set out in the Product Receipt and in accordance with clause 13.1.1;
Initial Period	means the period from the Commencement Date to the last working day of the fourth month following the Commencement Date;
Intellectual Property	means all intellectual property rights relating to or owned by either party to this Agreement anywhere in the world (including present and future intellectual property rights) relating to the Software the Services and the Customer Data, including without limitation Confidential Information, business names or logos, domain names, copyright, database rights, patents, trade or service marks, designs, software, computer data, generic rights, software programmes and source code and all variations, modifications or enhancements to each of them together with any application or right to apply for registration or protection of those rights;
Minimum Uptime	means an average of at least 99% server uptime during Working Hours for each Relevant Period;
Operating Rules	means any Implemetric rules or protocols, in whatever form recorded, that affect the Customer's access to or use of the Services, and made available by Implemetric from time to time to the Customer;
Periodic Payments	means the periodic payment as set out in the Product Receipt to be paid by the Customer to Implemetric in accordance with clauses 13.1.2 and 13.1.3;
Personnel	means any employees, officers, agents or contractors of either party;
Product Receipt	means the receipt issued by to the Customer by Implemetric following the Customer placing an order for the Services;
Relevant Period	means each of the following periods: - the period from the Commencement Date to the date in respect of which the first Periodic Payment is made, and - each period in respect of which a Periodic Payment is made thereafter;
Service Fee	means the Initial Payment and the Periodic Payments together;
Services	means the software applications services of Implemetric, as described in clause 3.2 and the Product Receipt and made available to the Customer (together with any Operating Rules);
Software	means the Iomis software and any other software that the Customer accesses as part of the Service;
Term	means the term of this Agreement as specified in clause 12 (Term);
Updates	means any new or updated applications services or tools (including updates of the Software) made available by Implemetric as part of the Services; and
Working Hours	means between the hours of 8am and 8pm (UK Time) from Monday to Friday (inclusive).

2.1 In this Agreement, unless the context otherwise requires:

2.2 Headings have been inserted for convenience only and shall not affect the interpretation of this Agreement.

3.1 Subject to Customer making payment of the Initial Payment as set out in clause 13.1.1, Implemetric shall procure the provision of the Services to the Customer from the Commencement Date in accordance with the terms and conditions of this Agreement and as set out in the Product Receipt.

3.2 The Services shall consist of

3.3 The Customer will obtain and maintain at its own cost and shall be responsible for, to the exclusion of Implemetric, all telecommunications and other services required to enable the Customer to access the Services.

3.4 The Customer agrees to comply with all rules, regulations, terms and conditions and conduct policies of any telecommunications provider, systems or services required to access the Services.

4.1 Implemetric will provide the Customer with an initial user identification and password to enable access the Services.

4.2 The Customer shall be responsible for keeping confidential this user identification and password and any others that they define within the system. If the Customer becomes aware of any unauthorised access the Customer agrees to immediately notify Implemetric.

4.3 The Customer shall be entirely responsible for all access to the Services where access is facilitated by the Customer's identification and password whether such access is with or without the Customer's consent.

5.1 The Customer shall not use the Service to send or permit others to send unsolicited commercial email or SPAM.

5.2 Customers must not violate or attempt to violate the security of Implemetric's systems. Without limit such violations include; accessing data or logging on to a server or account which the Customer is not authorised to access, testing the vulnerability of the system, interfering with services provided to other users including without limit by overloading or mail bombing.

5.3 The Customer shall not use the Services or the Software to store send or otherwise process material that is or may in the sole and reasonable opinion of Implemetric be considered to be pornographic, defamatory, misleading, deceptive or otherwise infringes any third party rights, pirated software or hacking tools, or is in breach of any laws, regulations, international conventions, licences or policies.

5.4 If Implemetric reasonably considers that the Customer may be in breach of the above then Implemetric may without liability to the Customer investigate the suspected breach (including accessing the Customer Data, provided that Implemetric shall only access such Customer Data for the sole purpose of investigating such breach), suspend the Services, remove any Customer Data and where such conduct may amount to a criminal offence, report such breach to and cooperate with the relevant authorities in relation to such suspected breach.

5.5 The Customer shall comply with and shall procure that its employees comply with the Operating Rules in connection with the Service

5.6 The Customer shall indemnify and hold harmless Implemetric and its affiliates, employees, agents, contractors, directors, officers and third party providers from all liabilities, demands, costs and expenses (including legal expenses) arising in connection with any breach by the Customer of this clause 5 (Customer Conduct) and any exercise by Implemetric of its rights, powers and obligations under this clause 5 (Customer Conduct).

6.1 Implemetric shall use all reasonable endeavours to procure the Services on a continuous basis subject to the terms of this Agreement.

6.2 Implemetric shall in addition to its obligation under clause 6.1 use all reasonable commercial endeavours to achieve the Minimum Uptime.

6.3 In the event that the Customer becomes aware that the Service is unavailable (other than as a result of notification by Implemetric under clause 6.8 below):

6.4 Where the Minimum Uptime is not achieved in any Relevant Period due to factors reasonably within Implemetric's control, the Customer shall be entitled, on written request, to a refund of a percentage of its Periodic Payment for that Relevant Period (as calculated in accordance with clause 6.5) provided that the Customer makes such request within the calendar month following such Relevant Period.

6.5 The percentage of the Periodic Payment that the Customer is entitled to request a refund of under clause 6.4 shall be equivalent to the difference between the Minimum Uptime and the Actual Uptime, where:

6.6 The Customer acknowledges that the internet and Implemetric's systems, servers and equipment may from time to time be inoperative in full or in part as a consequence of factors beyond Implemetric' reasonable control, including but not limited to mechanical breakdown, maintenance, hardware or software upgrades and telecommunication connectivity problems.

6.7 Implemetric will not be liable for its failure or inability to provide continuous, error free, uninterrupted services under the circumstances set out in clause 6.6.

6.8 In the event of any interruption as set out in this clause 6 (Uptime/Availability), Implemetric will notify the Customer as soon as reasonably practicable of any such interruptions to its ability to provide the Services by posting a notice on Implemetric's websites or by any other reasonable means via the Customer's contact details as submitted to Implemetric.

7.1 Subject to the Customer's payment of the Service Fees, the Customer is granted a non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) during the Term.

7.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with Implemetric and/or its licensors and no interest or ownership of the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.

7.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited save to the extent expressly permitted by applicable law.

7.4 Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer as part of the Customer's desktop architecture. The Customer may not (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by Implemetric; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party; or (iv) use the Software except in accordance with the number of users as set out in the Product Receipt or as agreed with Implemetric in writing.

7.5 The Customer warrants and represents that it shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement.

8.1 Implemetric makes no representations and gives no warranties express or implied that making the Software or the Services available in any particular jurisdiction outside the UK is permitted under any applicable non-UK laws or regulations. Accordingly, if making the Software (or any part) or the Services available in any non- UK jurisdiction or to the Customer (by reason of nationality, residence or otherwise) is prohibited, the Software and/or the Services is not offered to the Customer. The Customer accepts that if it is resident outside the UK, it must satisfy itself that it is lawfully able to purchase the Software or receive the Services. Implemetric accepts no liability, to the extent permitted by applicable laws, for any costs, losses or damages resulting from or to the provision of the Software or any Services requested, by persons in jurisdictions outside the UK or who are nominees of or trustees for citizens, residents or nationals of other countries.

8.2 The Customer is permitted to access "additional value added areas" of the Implemetric websites and download various tools and utilities in relation to the Software as Implemetric make available to the Customer from time to time.

8.3 Implemetric shall acknowledge any support issues that the Customer log with Implemetric by the close of the following working day, and shall use its reasonable endeavours to provide a response within 2 (two) working days thereafter, although Implemetric reserves the right to refer the Customer to available help facilities provided either with the Software, or the Services, if Implemetric feels at its sole discretion such action is appropriate.

8.4 Implemetric shall be entitled, on prior notice to the Customer, to make changes to the Services, provided such changes do not have a material adverse affect on the functionality of the Services.

8.5 Implemetric shall have no obligation to correct or continue to provide the Services where the cause or causes of any fault have been identified as having arisen from any of the following:

8.6 The Services and any other communication shall be provided to you in the English language. The provision of such communications in any other language shall be at Implemetric's sole discretion.

8.7 Implemetric may in its absolute discretion sub-contract the performance of any of its obligations under this Agreement.

9.1 All communications, documentation and materials relating to a support issue shall be sent as appropriate by Implemetric to the originator of the support request, or to such person nominated by the Customer to be available to liaise with Implemetric and respond to queries from Implemetric. All other communications relating to this Agreement shall be sent as appropriate to the Customer's appointed representative. The Customer shall notify Implemetric in writing promptly in the event of any proposed change to the Customer's appointed representative.

9.2 Implemetric shall provide such support staff as it deems reasonably necessary to fulfil its obligations under the terms of this Agreement. The support staff shall be suitably trained and experienced in the support and maintenance of the Services.

9.3 In the absence of any member of the support staff for any reason Implemetric shall supply a replacement person who:

10.1 If the Customer feels that a support issue or any dispute ("an Issue") has not been settled between the Implemetric support staff and the Customer's appointed representative within a reasonable period of time (such reasonable period of time to take into account all the circumstances such as the nature of the Issue and alternative methods of resolving the Issue), the Customer shall notify Implemetric in writing of the same.

10.2 Upon receipt of such written notice, the parties shall each nominate a senior representative to whom the Issue shall be escalated, and such representatives shall use their respective reasonable endeavours to resolve the Issue as soon as reasonably practicable.

10.3 If the Issue still remains unresolved at this stage, the Issue shall then be escalated to the managing director or such equivalent person of each party whose determination on the Issue on behalf of each party shall be final.

10.4 If the Issue remains unresolved after conclusion of the escalation procedures as set out in this clause 10 (Dispute Resolution - Escalation), either party may pursue any remedy it may have at law, subject to the exclusions and limitations under this Agreement.

11.1 Implemetric gives no condition, warranty, or undertaking, and makes no representation to the Customer about the suitability of, or fitness of the Services for the Customer's purposes other than those conditions, warranties, undertakings or representations expressly set out in this Agreement.

11.2 With the exception of any rights which the Customer may have under applicable law all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the terms of this Agreement to the fullest extent permitted by law.

11.3 Nothing in this Agreement excludes or limits the liability of Implemetric for death or personal injury caused by Implemetric's negligence; or from fraudulent misrepresentation or fraud.

11.4 Subject to sub-clauses 11.2 and 11.3:

11.5 Implemetric, at its own expense, shall (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (i) the Customer notifies Implemetric promptly of each such claim or suit; (ii) Implemetric is given sole control of the defence and/or settlement; and the (iii) Customer fully co-operates and provides all reasonable assistance to Implemetric in the defence or settlement.

11.6 If all or any part of the Services becomes, or in the opinion of Implemetric may become, the subject of a claim or suit of infringement, Implemetric at its own expense and sole discretion may:

11.7 The Provider shall have no obligations under clause 11.5 to the extent that a claim is based on:

11.8 The Customer shall indemnify and hold Implemetric and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from (i) any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer's use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by a third party, and (iii) use by Implemetric of any Customer provided item.

This Agreement shall commence on the Commencement Date and continue for the Initial Period, unless terminated earlier under clause 16 (Termination). After the Initial Period, this Agreement shall continue in full force and effect (subject to clause 16 (Termination)) unless and until terminated by either party giving three months' notice in writing to the other party. Notice to terminate cannot expire until the Initial Period has elapsed.

13.1 The Customer will pay to Implemetric the Service Fees in accordance with the following:

13.2 Implemetric may waive payment of Service Fees subject to conditions set out in the Product Receipt. Should the Customer's use of the Services no longer meet these conditions, Implemetric will give prior notification to the Customer of any Service Fees due and the Customer shall either agree to pay such Service Fees or activate its rights to terminate this Agreement.

13.3 The Customer acknowledges that there may from time to time be increases in the Periodic Payments including the withdrawal of any Service Fee waiver. Implemetric will give prior notification to the Customer of any such increase in Periodic Payments and the Customer shall either agree to pay such increase in Periodic Payments or activate its rights to terminate this Agreement.

13.4 Any increase in Periodic Payments as anticipated under clauses 13.2 and 13.3 will not apply to the Initial Payment or to any other advance payments of Periodic Payments made by the Customer.

13.5 The Customer acknowledges that Expenses may also be incurred, including but not limited to increasing the number of users, increasing the amount of diskspace allocation and restoring back-ups of the Customer Data as and when requested by the Customer. Implemetric will give prior notification to the Customer of incurring any such Expenses and the Customer shall either agree to reimburse Implemetric accordingly or refuse any such additional works to which the Expenses relate.

13.6 In the event that the Customer requests additional users to be added, then:

13.7 Time for payment of any fees from the Customer as set out in this Agreement shall be of the essence.

13.8 Without limiting any other right or remedy available to Implemetric, Implemetric may on giving seven (7) days written notice, and without having to account for or to repay any money previously paid to it pursuant to the terms of this Agreement, refuse to commence, complete or deliver any work or otherwise comply with the provisions of this Agreement on Implemetric's part to be observed or performed in the event the Customer:

14.1 The parties acknowledge that this Agreement does not have the effect of transferring the ownership of any Intellectual Property.

14.2 Any Intellectual Property owned by either party and required for the performance by the other party of its obligations under this Agreement shall be licensed to that other party on a non-exclusive, royalty-free basis for the purpose of fulfilling that party's obligations under this Agreement and for the period during which the use of that Intellectual Property by that party pursuant to this Agreement is required save that Implemetric acknowledges and agrees that the Customer will own all Intellectual Property in the Customer Data.

15.1 Each party warrants to the other that:

15.2 Implemetric warrants to the Customer:

15.3 The Customer warrants to Implemetric:

15.4 Implemetric shall not be liable for defects resulting from (i) improper use of the Services by the Customer or by another third party (ii) deficiencies or damages relating to third party components not furnished by Implemetric or (iii) any third party connectivity necessary for the provision or use of the Services.

15.5 If, during the term of this Agreement, Implemetric receives written notice from the Customer of any breach by Implemetric of the representation and warranties contained in sub-clauses 15.1 and 15.2 Implemetric shall, at its own option and expense, remedy that breach within a reasonable period following receipt of such notice or terminate this Agreement immediately on written notice to the Customer and repay to the Customer all sums which the Customer have paid to Implemetric under this Agreement during Relevant Period in which the termination occurs less a pro rata charge for the period of this Agreement already expired. The Customer will provide all information reasonably necessary to enable Implemetric to comply with its obligations under this sub-clause 15.5. Subject to clause 11.3 this sub-clause 15.5 sets out the Customer's sole remedy and Implemetric's entire liability for breach of sub-clause 15.1 or 15.2.

15.6 No representation or warranty is given by Implemetric that all faults will be fixed or will be fixed within a specified period of time. Whilst Implemetric makes every effort to ensure that the Software and the Services are free from infection, viruses and/or any other code that has contaminating or destructive properties ("Contamination") Implemetric does not warrant that the Software or Services will be free from such Contamination.

16.1 Implemetric may terminate this Agreement by notice in writing to the Customer in the event that:

16.2 Either party shall be entitled to terminate this Agreement immediately by notice in writing to the other if the other party shall:

16.3 Upon termination of this Agreement:

16.4 Termination of the Agreement for whatever reason shall not affect the accrued rights of the parties arising in any way out of this Agreement as at the date of termination and, in particular but without limitation, the right to recover damages against the other. Clauses 5, 7, 11, 12, 13, 14, 15, 16, 17, and 18 shall for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.

17.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.

17.2 Either party may disclose Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.

17.3 All documents and other materials containing Confidential Information of either party will be returned to that party as soon as reasonably practicable following termination of this Agreement.

17.4 The parties' obligations to keep information confidential will survive the termination of this Agreement.

17.5 The obligations of confidentiality under this Agreement do not extend to information that:

The Software and Services are protected by international copyright laws and other intellectual property rights. The owner of these rights is Implemetric, its affiliates or other third party licensors. All product and company names and logos contained within the Software and the Services are the trademarks, service marks or trading names of their respective owners, including Implemetric. The Customer may not modify, copy, reproduce, republish, upload, post, transmit or distribute the Software, the Services or any part thereof (including but not limited to text, graphics, video, messages and/or code) by any means or in any manner, without Implemetric's prior written consent, except where expressly invited to do so in accordance with this Agreement.

19.1 Implemetric may assign, transfer, novate, or subcontract any or all of its rights and obligations under this Agreement at any time.

19.2 If any provision or term of this Agreement shall become or be declared illegal, invalid or unenforceable for any reason whatsoever, such term or provision shall be divisible from the other terms and conditions and shall be deemed to be deleted from them.

19.3 This Agreement, the Customer's use of the Software and the Services is governed by English law and the parties submit to the non-exclusive jurisdiction of the English court.

19.4 Failure to delay by either party enforcing an obligation or exercising a right under this Agreement does not constitute a waiver of that obligation or right.

19.5 This Agreement does not confer any rights on any person or party (other than Implemetric and the Customer) pursuant to the Contracts (Rights of Third Parties) Act 1999.

19.6 This Agreement, the Software, the Services and any accompanying documentation is made in the English language. If there is any conflict in meaning between the English language version and any version or translation in any other language, the English language version shall prevail.

20.1 All notices shall be given:

20.2 All notices shall, except where otherwise specifically provided, be in writing in the English language and may be:

21.1 'Force Majeure' means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limit where Implemetric ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, denial of service attacks, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency.

21.2 If a party is wholly or partially precluded from complying with its obligations under this Agreement by Force Majeure, then that party's obligation to perform in accordance with this Agreement will be suspended for the duration of the Force Majeure.

21.3 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.