8. Your obligations

1. You must:

1. provide Tradesoft with:

1. all necessary co-operation in relation to this agreement; and

2. all necessary access to such information as may be required by Tradesoft; in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

1. comply with all applicable laws and regulations with respect to its activities under this agreement;

2. carry out all of your other responsibilities as set out in this agreement in a timely and efficient manner;

3. ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement, including the policies incorporated by and listed in clause 17 below, and shall be responsible for any Authorised User’s breach of this agreement;

4. obtain and shall maintain all necessary licences, consents, and permissions necessary for Tradesoft, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;

5. ensure that your network and systems comply with the relevant specifications provided by Tradesoft from time to time; and

6. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to Tradesoft’s 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.

9. Electronic contracting

Your use of the Services includes the ability to enter into agreements and to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into through the Services, including notices of cancellation, policies, contracts and applications. In order to access and retain the electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

10. Charges and payment

1. You must pay the Subscription Fees to Tradesoft for the User Subscriptions in accordance with this clause 10 and Tradesoft’s Price Guide .

2. You must on signing up for the Services provide to Tradesoft a valid, up-to-date and complete credit or debit card details or approved purchase order information acceptable to Tradesoft and any other relevant valid, up-to-date and complete contact and billing details. By providing credit or debit card details to Tradesoft, you hereby authorise Tradesoft to bill such credit or debit card:

1. on the Agreement Date for the Subscription Fees payable in respect of the first Renewal Period; and

2. subsequently, subject to clause 16.1, on the last Business Day prior to the start of each subsequent Renewal Period.

3. If Tradesoft has not received payment by the start of a Renewal Period, and without prejudice to any other rights and remedies of Tradesoft:

1. Tradesoft may, without liability to you, disable your password, account and access to all or part of the Services and Tradesoft shall be under no obligation to provide any or all of the Services until payment for that Renewal Period is made (there shall be no reduction in the payment due in respect of the Renewal Period as a consequence of such suspension); and

2. if the invoice concerned remains unpaid 14 days after falling due then Tradesoft may terminate this agreement in accordance with condition 16.3.1;

3. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of National Westminster Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment; and

4. All amounts and fees stated or referred to in this agreement:

1. are, subject to clause 14.6.2, non-cancellable and non-refundable;

2. are exclusive of value added tax, which shall be added to Tradesoft’s invoices at the appropriate rate.

5. If, at any time whilst using the Services, you exceed the amount of disk storage space specified in the Documentation, Tradesoft shall charge you, and you shall pay, Tradesoft’s then current excess data storage fees as set out in Tradesoft’s Price Guide .

6. Tradesoft shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.1 or the excess storage fees payable pursuant to clause 10.5 in accordance with clause 20.4.

7. You acknowledge and agree that we will send invoices to you electronically only. You must provide us with a valid and current e-mail account to which we will send your invoices. The accuracy of the e-mail address you provide to us for this purpose is entirely your responsibility.

8. You must pay to Tradesoft on demand and on an indemnity basis all such legal costs or expenses which Tradesoft may reasonably incur from time to time incur in connection with:

1. enforcing the payment of any sum due to it under this agreement; or

2. successfully defending a claim brought by you relating to this agreement.

11. Proprietary rights

1. You acknowledge and agree that Tradesoft or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant you any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.

2. Tradesoft 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.

12. Confidentiality

1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:

1. is or becomes publicly known other than through any act or omission of the receiving party;

2. was in the other party’s lawful possession before the disclosure;

3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

4. is independently developed by the receiving party, which independent development can be shown by written evidence; or

5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, shall not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.

3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.

4. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

5. You acknowledge that details of the Services, and the results of any performance tests of the Services, constitute Tradesoft’s Confidential Information.

6. Tradesoft acknowledges that your Customer Data is your Confidential Information.

7. No party shall make, or permit any person to make, any public announcement concerning this agreement 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.

8. The above provisions of this clause 12 shall survive termination of this agreement, however arising.

13. Indemnity

1. You shall defend, indemnify and hold harmless Tradesoft against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Services and Documentation, provided that:

1. you are given prompt notice of any such claim;

2. Tradesoft provides reasonable co-operation to you in the defence and settlement of such claim, at your expense; and

3. you are given sole authority to defend or settle the claim.

2. Tradesoft shall defend you, your officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Agreement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify you for any amounts awarded against you in judgment or settlement of such claims, provided that:

1. Tradesoft is given prompt notice of any such claim;

2. you provide reasonable co-operation to Tradesoft in the defence and settlement of such claim, at Tradesoft’s expense; and

3. Tradesoft is given sole authority to defend or settle the claim.

3. In the defence or settlement of any claim, Tradesoft may procure the right for you to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to you without any additional liability or obligation to pay liquidated damages or other additional costs to you.

4. In no event shall Tradesoft, its employees, agents and sub-contractors be liable to you to the extent that the alleged infringement is based on:

1. a modification of the Services or Documentation by anyone other than Tradesoft; or

2. your use of the Services or Documentation in a manner contrary to the instructions given to you by Tradesoft; or

3. your use of the Services or Documentation after notice of the alleged or actual infringement from Tradesoft or any appropriate authority.

5. The foregoing and clause 14.6.2 state your sole and exclusive rights and remedies, and Tradesoft’s (including Tradesoft’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

14. Limitation of liability

Your attention is drawn particularly to this clause.

1. You acknowledge that it is reasonable for Tradesoft to limit its liability for any Claim under this agreement as:

1. it is not commercially sensible for Tradesoft to accept unlimited liability especially given the nature and complexity of the Services; and

2. in the interests of keeping the price to a reasonable level Tradesoft cannot cover every risk normally associated with services in the nature of the Services given that software in general is not error free; and

3. it is not possible for Tradesoft to test the Services on all possible hardware configurations and platforms which you may wish to deploy.

2. You acknowledge that:

1. it is your responsibility to ensure that the facilities and functions of the Services meet your requirements. We shall not be liable for any failure of the Services to provide any facility or function not specified by us in writing.

2. software in general is not error free and you agree that the existence of such errors shall not constitute a breach of this agreement.

3. the Services may use technology that is not fault tolerant and the Services are not designed manufactured or intended for use in environments or applications in which their failure could lead to death personal injury or severe physical property or environmental damage.

4. it is your responsibility to back up your data so that it can be recovered in the event of any data loss. We shall not be liable in any way for any loss of data.

5. it is your responsibility to ensure that your username and password for any Service is kept secure. We will not be liable in any way for any loss or damage arising out of your loss of or the misuse of your password.

6. you must ensure that you have access to your email account which you use to register for any of our Services. Should you change your email account you agree to immediately update the email account used to contact you in respect of each Service. We will not be liable in any way for either (i) any loss or damage arising out your inability to access your email account or (ii) your failure to notify the provider of any Service of your change of email account.

3. This clause 14 sets out the entire financial liability of Tradesoft (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you:

1. arising under or in connection with this agreement;

2. in respect of any use made by you of the Services and Documentation or any part of them; and

3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

4. Except as expressly and specifically provided in this agreement:

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

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 this agreement; and

3. the Services and the Documentation are provided to you on an “as is” basis.

5. Nothing in this agreement excludes the liability of Tradesoft:

1. for death or personal injury caused by Tradesoft’s negligence; or

2. for fraud or fraudulent misrepresentation;

3. any other matter for which it would be illegal for Tradesoft to exclude or attempt to exclude liability.

6. Subject to clause 14.4 and clause 14.5:

1. Tradesoft 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 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 this agreement; and

2. Tradesoft’s total aggregate liability in contract (including in respect of the indemnity at clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

15. Warranty and indemnity

1. You warrant and represent that your and your employees’, agents’ and sub-contractors’ use of the Services will be for lawful purposes and within the scope of this Agreement.

2. You warrant and represent that your and your employees’, agents’ and sub-contractors’ use of the Services will not violate any applicable law, regulation or treaties and that such use will not be infringe the intellectual property rights of any person.

3. You shall indemnify and hold Tradesoft harmless against and shall pay to Tradesoft on demand all claims, liabilities, losses (including any direct indirect or consequential losses loss of profit and loss of reputation loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) damages, costs and expenses incurred or suffered by it (including but not limited to claims in respect of defamation breach of copyright or other intellectual property right infringement) arising out of or in connection with:

1. any claim or demand including for reasonable legal charges made to Tradesoft by any third party due to or arising out of anything you submit store post to or transmit through the Services, your use of the Services or your connection to the Services; or

2. any breach of conditions 15.1 and 15.2; or

3. any breach, failure to perform or delay in the performance of any of your obligations under these Conditions; or

4. any fraud or negligence by you, your employees or agents.

16. Term and termination

1. This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Agreement Date and shall continue for one month and, thereafter, this agreement shall be automatically renewed for successive periods of one calendar month (each a Renewal Period), unless:

1. either party notifies the other party of termination, in writing, at least 7 days before the end of any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Renewal Period; or

2. otherwise terminated in accordance with the provisions of this agreement;

and the period from the Agreement Date to the date of termination of this agreement shall constitute the Subscription Term.

1. Without affecting any other right or remedy available to it, Tradesoft may terminate this agreement with immediate effect by giving written notice to you if any sum due is not

2. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:

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

2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;

4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

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

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

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 the other party;

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

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

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

11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.3.3 to clause 16.3.10 (inclusive); or

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

3. On termination of this agreement for any reason:

1. all licences granted under this agreement shall immediately terminate;

2. 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;

3. Tradesoft may destroy or otherwise dispose of any of your Customer Data in its possession unless Tradesoft receives, no later than ten days after the Agreement Date of the termination of this agreement, a written request for the delivery to you of the then most recent back-up of your Customer Data. Tradesoft shall use reasonable commercial endeavours to deliver the back-up to you within 30 days of its receipt of such a written request, provided that you have, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). You shall pay all reasonable expenses incurred by Tradesoft in returning Customer Data as set out in Tradesoft’s Price Guide; and

4. 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 agreement which existed at or before the date of termination shall not be affected or prejudiced.

17. Supplementary documents

1. The Supplementary Documents are:

1. Price Guide

2. Security Policy

3. Back-Up Policy

4. Data and Privacy Policy

5. Ethics and Anti-Bribery Policy

6. Cookie Policy

7. Acceptable Use Policy

8. Support Services Policy

1. Force majeure

Tradesoft shall have no liability to you under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Tradesoft or any other party), failure of a utility service or transport or telecommunications network, 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 is notified of such an event and its expected duration.

18. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.

1. Changing this agreement

1. You may add to or reduce the Services from time to time by using the WEB PORTAL or contacting our customer services team.

2. Tradesoft may at any time modify, amend or alter the terms of this agreement or the Services:

1. if there is any change or amendment to any law or regulation which applies to Tradesoft or the Services provided to you;

2. if Tradesoft decides that the Services should be altered for reasons of quality of service or otherwise for the benefit of customers or, in our reasonable opinion, it is necessary to do so;

3. for security, technical or operational reasons;

4. if the changes or additions are minor and do not affect you significantly or Tradesoft wishes to have all its customers on the same terms and conditions; or

5. in all other events, where Tradesoft reasonably determines that any modification to the relevant system or change in trading, operating or business practices or policies is necessary to maintain or improve the Services provided to you.

3. Due to the nature of the Services, they will be updated and the content will change from time to time.

4. Tradesoft may change its charges as set out in Tradesoft’s Price Guide at any time. Any changes will be published by Tradesoft on the website at www.trade-soft.co.uk  and we will also give you notice of any change at least 30 days before any change takes effect and you may terminate this agreement in accordance with clause 16.1. If you do not terminate this agreement then you will be deemed to accept the change.

2. Waiver

No failure or delay by a party to exercise any right or remedy provided under this agreement 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.

19. Rights and remedies

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

1. Severance

1. 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.

2. 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.

2. Entire agreement

1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

2. Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.

3. Assignment

1. You shall not, without the prior written consent of Tradesoft, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this agreement.

2. Tradesoft 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 this agreement.

4. No partnership or agency

Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party 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).

20. Third party rights

This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

1. Contacting each other

1. Tradesoft will contact you using the contact details you provide and which can be updated in your USER AREA. You must ensure that the contact details Tradesoft have for you are at all times true current accurate and complete and you must tell us if your name or contact details change. If you do not tell us Tradesoft will go on using the details you last provided and Tradesoft will not be responsible if it fails to contact you or if it sends confidential information to the wrong address using out-of-date details.

2. Tradesoft will communicate with you by e-mail. For contractual purposes you consent to receive communications from Tradesoft electronically and you agree that all agreements, notices, disclosures and other communications that Tradesoft provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights.

3. You agree that an e-mail shall be deemed received and properly served at 9 am on the Business Day following the day on which it is sent. In order to prove that you have received an email it will be sufficient for Tradesoft to show that the e-mail was sent to your specified e-mail address.

4. Tradesoft’s registered office is Unit 3 Boscomoor Industrial Estate, Boscomoor Lane, Penkridge, Staffordshire, England ST19 5QY. It is a company registered in England with company number 09838297.

5. You must contact Tradesoft using the following contact details:

Address: Unit 3 Boscomoor Industrial Estate, Boscomoor Lane, Penkridge, Staffordshire, England ST19 5QY

Telephone: 0800488600

E-mail: webmaster@trade-soft.co.uk

1. Tradesoft may listen into or record any telephone calls with you to check Tradesoft has carried out your instructions correctly and to help improve its service.

22. Service level

1. Subject to paragraph 29.2 below, if in relation to the provision of the Services to you the Downtime for any Renewal Period exceeds the Service Level then Tradesoft will provide to you a service credit of 1% of the price paid by you to Tradesoft for the provision of the Services for the relevant Renewal Period for each complete hour that the Services experience Downtime during that Renewal Period in excess of the Service Level.

2. You agree that your right to receive service credits pursuant to this condition 29 with respect to any Renewal Period and in relation to the provision of the Services to you is subject to the following provisions:

1. In the event that you contend that Tradesoft are liable to provide service credits to you pursuant to this condition 29 you shall within 5 days of the Downtime notify Tradesoft in writing that you contend that a liability to provide service credits has arisen, the period of Downtime which you consider to have occurred and any other information reasonably requested by Tradesoft to enable it to verify your contentions. Tradesoft shall investigate whether such liability has arisen and the extent of such liability and if the liability has arisen account for the service credits due in accordance with condition 29.2.2 below.

2. In the event that Tradesoft is due to provide service credits to you pursuant to paragraph 29.2.1 above the amount of such service credits shall be credited against the next payment due to be paid by you to Tradesoft for any Services. If no further payment is due, the amount of the service credits shall be paid to you into the account from which payment was received by Tradesoft, and you shall provide any other information reasonably requested by Tradesoft to enable it to make such payment.

3. Tradesoft’s liability to pay service credits in respect of any Renewal Period shall not in any event exceed the price paid by you to Tradesoft for the provision of the Services for the relevant Renewal Period.

23. Trial Period

1. Save for the provisions in respect of charges, the terms of this Agreement shall apply to you during any Trial Period. Whilst you are in a Trial Period you may at any time (through WEB PORTAL) choose not to continue to paid subscription at the end of the Trial Period.

2. If you select not to continue at the end of the Trial Period this Agreement will terminate at the end of the Trial Period and your licence and right to use the Services will cease at the end of the Trial Period unless a further Trial Period is agreed or you subscribe to the Software from the expiry date of any such Trial Period.

24. Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

25. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).