Terms and Conditions

IDENTITY MANAGEMENT SOLUTIONS LIMITED

PART A - GENERAL TERMS AND CONDITIONS

THESE CONDITIONS GOVERN THE PROVISION AND SALE OF OUR EQUIPMENT AND SOFTWARE SERVICE TO YOU. PLEASE READ THESE CONDITIONS CAREFULLY BEFORE PLACING AN ORDER WITH US. BY ORDERING OUR SERVICES YOU AGREE TO THESE CONDITIONS WHICH WILL BIND YOU AND YOUR EMPLOYEES.
PLEASE ENSURE THAT YOU PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions and the terms and conditions which apply to the supply of our Equipment and Software Service set out in Part B below (Conditions).

Contract: these Conditions (as may be amended from time to time) and the Order which has been acknowledged and accepted or confirmed by the Supplier in accordance with condition 2.2. below.

Customer: the person, firm or company who purchases Equipment and/or Software Services from the Supplier.

Document: includes, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, tape, disk or other device or record embodying information in any form.

Equipment the ID Vista device, program and other equipment agreed in the Contract to be purchased by the Customer from the Supplier (including any part or parts of it).

Intellectual
Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Order: the Customer's order for the Equipment and Software Services in the form set out overleaf or as otherwise made available by the Supplier.

Software
Service: the ID Vista Software Service to be provided by the Supplier under the Contract as set out in Part B below, together with any other services which the Supplier provides or agrees to provide to the Customer from time to time.

Supplier: Identity Management Solutions Limited (registered number 5918711) and whose registered office is at 21 Springfield Road, Blackpool Lancashire fy1 1re

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

Website: the Supplier's website at www.idvista.com.

1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.

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

1.4 Words in the singular shall include the plural and vice versa.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.6 A reference to writing or written includes faxes and e-mail.

1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.8 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

1.9 References to conditions are to the conditions of the Contract.

2. Application of Conditions

2.1 These Conditions shall:

(a) apply to and be incorporated into the Contract; and
(b) prevail over any inconsistent terms or conditions contained, or referred to, in the Order, or implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase (or if applicable, rent or hire) the Equipment and/or the Software Service specified in it on these Conditions. The Customer shall ensure that the Order is complete and accurate.
2.3 A binding Contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a written Order acknowledgement to the Customer, or the Supplier delivers the Equipment or allows access to the Software Service (whichever occurs first). The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other Document shall not govern the Contract.

2.4 The Customer hereby confirms that (i) in the case of an individual, he or she is at least 18 years old, or (ii) the director or person who completed an Order or accepted any quotation for the Equipment and the Software Service by the Supplier has the necessary authority to act on the Customer's behalf and bind the Customer to the Contract.

2.5 No Order which has been acknowledged by the Supplier may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of cancellation.

3. Variations to these Conditions

The Supplier may vary these Conditions at any time by posting the changes or any new version of the same on the Website and, where reasonably practicable, giving the Customer prior notice. The Customer hereby agrees that, if the Customer decides to use the Equipment and/or the Software Service after any variation(s) to these Conditions have been posted on the Website, the Customer will be bound by the Contract as varied.

4. Supplier's Obligations

The Supplier endeavours to provide the Equipment and/or the Software Service by any date(s) agreed with the Customer. Any such dates shall be estimates only and time shall not be of the essence of the Contract. The Supplier shall also make the Software Service available for the period specified in the Contract (subject to the provisions set out herein).

5. Charges and Payment

5.1 All sums payable to the Supplier for the provision of the Equipment and the Software Service stated in the Order shall be on the terms set out in Part B of these Conditions below.

5.2 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and

5.3 Time for payment shall be of the essence of the Contract.

5.4 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 5.4 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.

5.5 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

6. Confidentiality

6.1 The parties will each keep confidential any proprietary information and/or any information obtained from the other in connection with the Contract which is reasonably identified by either party as commercially confidential or which is obviously confidential in nature and neither will, without the consent in writing of the other, divulge the same to any third party except such of its employees contractors and agents as may need to know the same for the purposes of the implementation of the Contract and who agree to be bound by the provisions of this clause.

6.2 The obligations aforesaid shall not apply to any material or information which is (i) in the public domain (other than as a result of a breach of this Contract), (ii) already known to the receiving party, or (iii) lawfully received from a third party and/or ordered to be disclosed by any court or other tribunal or regulatory authority of competent jurisdiction.

7. Limitation of Liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION

7.1 This condition 7 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of the Contract;
(b) any use made by the Customer of the Equipment and/or the Software Service; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.

7.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

7.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier.

7.4 Subject to condition 7.2 and condition 7.3:

(a) the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:

(i) loss of profits; or

(ii) loss of business; or

(iii) depletion of goodwill and/or similar losses; or

(iv) loss of anticipated savings; or

(v) loss of goods; or

(vi) loss of contract; or

(vii) loss of use or reduced speed of use; or

(viii) loss of corruption of data or information; or

(ix) loss of any premises, liquor or other licence; or

(x) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.

(b) the Supplier's total 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 price paid by the Customer for the Equipment and Software Service.

8. Data Protection
8.1 The Customer acknowledges and agrees that details of the Customer's name, address and payment record may be submitted to a credit reference agency, and personal data will be processed by and on behalf of the Supplier in connection with the Software Service.
8.2 Upon termination of this Contract for any reason whatsoever, the Supplier's right to possess any Personal Information (as defined in Part B below) or other information owned by the Customer and supplied to the Supplier shall cease and the Supplier shall promptly delete, purge or destroy all such personal Information or other information held by it.

9. Termination

9.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:

(a) the other party commits a material breach of any of the terms the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or

(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or

(d) a receiver is appointed of any of the other party's assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or

(f) the other party ceases, or threatens to cease, to trade; or

(g) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
9.2 The Supplier may also terminate the Contract immediately upon a change of control of the Customer (as defined in section 574 of the Capital Allowances Act 2001).

9.3 On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest, and, in respect of the Software Service supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;

(b) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected;

10. Force Majeure

The Supplier shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility or telecommunication service or transport 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.

11. Waiver

11.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

11.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

12. Severance

12.1 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.

12.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.

12.3 The parties agree, in the circumstances referred to in condition 12.1 and if condition 12.2 does not apply, to attempt to substitute for any invalid, unenforceable or illegal provision a valid, enforceable and legal provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision. The obligations of the parties under any invalid or unenforceable provision of the Contract shall be suspended while an attempt at such substitution is made.

13. Status of Pre-Contractual Statements

Each of the parties acknowledges and agrees that, in entering into the Contract 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 these terms and conditions or not) relating to the subject matter of the Contract, other than as expressly set out in the Contract.

14. Assignment

14.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.

14.2 The Supplier 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.

15. No Partnership or Agency

Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16. Rights of Third Parties

The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

17. Notices

Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address, fax number, or e-mail address given in the Contract (or such other address, fax number, e-mail address or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax, sent by e-mail or sent by pre-paid, first-class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of e-mail, 24 hours after an e-mail is sent, and in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 18 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party, in the case of post, that the envelope containing the notice was properly addressed and posted and in the case of e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

18. Governing Law and Jurisdiction

18.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.

18.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.

PART B - EQUIPMENT AND SOFTWARE SERVICE TERMS AND CONDITIONS

Except as otherwise defined herein and except where the context requires otherwise, words and expressions defined in the General Terms and Conditions set out in Part A above, shall have the same meanings when used in these terms and conditions.

PURCHASE OF EQUIPMENT

1. Quantity and Description

1.1. The quantity and description of the Equipment shall be as set out in the Contract.

1.2. All descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the Contract.

1.3. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.

1.4. The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer's specification, which do not materially affect their quality or performance. Since the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier.

1.5. The Supplier's employees, contractors and agents are not authorised to make any contractually binding representations concerning the Equipment. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which have not been confirmed in writing by an authorised officer of the Supplier. However, nothing in these conditions limits the Supplier's liability for fraudulent misrepresentation.

1.6. Any advice or recommendation given by the Supplier or its employees, contractors or agents to the Customer or its employees, contractors or agents about the storage, application or use of the Equipment which is not confirmed in writing by an authorised officer of the Supplier is followed or acted on entirely at the Customer's own risk.

2. Prices

2.1. All prices shall be as stated in the Contract. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.

2.2. The price for the Equipment is based on the rate prevailing at the date of the Contract and the Supplier may increase the price to cover any increases due to market conditions (including, but not limited to, increases in foreign exchange rates relating to the Equipment, or in labour, materials, supply or transportation costs) which affect the Supplier at the date of delivery.

2.3. The price of the Equipment shall be the Supplier's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Supplier's price list current at the date of the Contract. The Supplier's published export price list shall apply to exports of the Equipment as appropriate.

2.4. The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by an instructions of the Customer or failure of the Customer to give the Supplier adequate information or instructions.

3. Payment

3.1. Subject to any special terms agreed in writing between the Customer and the Supplier (including, without limitation, the Supplier agreeing to hire or lease the Equipment to the Customer), the Supplier may invoice the Customer for the price of the Equipment on or at any time after delivery of the Equipment.

3.2. The terms of the payment shall be within 14 days of the date of the Supplier's invoice.

3.3. If the Customer fails to make payment in full on the due date, the whole of the balance of the price of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier may:

(a) terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) to the Customer;
(b) appropriate any payment made by the Customer to such of the Equipment (or the Equipment supplied under any other contract between the Customer and the Supplier) as it thinks fit (despite any purported appropriation by the Customer);
(c) suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;
(d) make a storage charge for any undelivered Equipment at its current rates from time to time;
(e) stop any Equipment in transit; and
(f) a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to the Supplier. The Supplier shall be entitled, on the expiry of 14 days' notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.

4. Delivery of Equipment and Acceptance

4.1. The Supplier shall use its reasonable endeavours to deliver the Equipment on the date or dates specified in the Contract, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of acceptance of the Order. Time is not of the essence as to the delivery of the Equipment and the Supplier is not liable for any delay in delivery, however caused.

4.2. The Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the Customer.

4.3. Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer's request.

4.4. The Customer shall be responsible (at the Customer's cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver the Equipment. If the Supplier is prevented from carrying out delivery on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this event.

4.5. The Customer shall be deemed to have accepted the Equipment when the Customer has had 48 hours to inspect it after delivery and has not exercised in writing its right of rejection.

4.6. The Supplier shall be responsible for any damage, shortage or loss in transit, provided that the Customer notifies it to the Supplier (or its carrier, if applicable) within 48 hours of delivery or the proposed delivery date of the Equipment and that the Equipment has been handled in accordance with the Supplier's stipulations. Any remedy under this condition 4.6 shall be limited, at the option of the Supplier, to the replacement or repair of any Equipment which is proven to the Supplier's satisfaction to have been lost or damaged in transit.

5. Risk and Property

5.1. The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Contract. The Supplier shall off-load the Equipment at the Customer's risk.

5.2. Ownership of the Equipment shall pass to the Customer on the later of completion of delivery (including off-loading), or when the Supplier has received in full in cleared funds all sums due to it in respect of:

(a) the Equipment; and

(b) all other sums which are or which become due to the Supplier from the Customer on any account.

5.3. Until ownership of the Equipment has passed to the Customer under condition 5.2, the Customer shall:

(a) hold the Equipment on a fiduciary basis as the Supplier's bailee;

(b) store the Equipment (at no cost to the Supplier) in satisfactory conditions and separately from all the Customer's other equipment or that of a third party, so that it remains readily identifiable as the Supplier's property;

(d) keep the Equipment insured on the Supplier's behalf for its full price against all risks to the reasonable satisfaction of the Supplier, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.

5.4. The Customer's right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 9 in Part A above arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due date.

5.5. The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer's right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the Customer.

5.6. On termination of the Contract for any reason, the Supplier's (but not the Customer's) rights in this condition 5 shall remain in effect.

5.7. The Supplier may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may take such appropriation at any time.

5.8. The Customer shall ensure that at all times the Equipment is situated and maintained at the premises stated in the Order unless otherwise agreed with the Supplier.

6. Warranty

6.1. The Supplier warrants to the Customer that the Equipment is free from defects of workmanship and materials. The Supplier undertakes (subject to the remainder of this condition 6), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within six months of delivery and installation.

6.2. The Supplier shall not be liable for a breach of the warranty contained in condition 7 unless:

(a) the Customer gives written notice of the defect to the Supplier within 48 hours of the time when the Customer discovers or ought to have discovered the defect; and

(b) after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier's place of business at the Supplier's cost for the examination to take place there.

6.3. The Supplier shall not be liable for a breach of the warranty in condition 6 if:

(a) the Customer makes any use of Equipment in respect of which it has given written notice under condition 6.2(a); or
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or

6.4. Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the six month period.

6.5. The Supplier shall not be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal application.

7. Intellectual Property Rights

7.1. The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of the Supplier or (as the case may be) third party rights, owner.

7.2. The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.

7.3. The Supplier's Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of the Supplier, and the Customer shall not at any time make ay unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do so.

SOFTWARE SERVICE
1. Additional Definitions

Customer Content means all data, graphics, files and information which is derived or obtained from the Customer's use of the Equipment including Personal Information, or which the Customer submits in connection with its use of the Software and the Software Service;
Commencement Date means (i) the date of delivery of the Equipment; or (ii) the date from which the Software Service is accessed (whichever occurs first);
Initial Period means the period from the Commencement Date until the first anniversary of such date or such other period as may be agreed between the parties and specified in the Contract;
Licence Fee the licence fee payable by the Customer to the Supplier per licensed User in respect of the licence of the Software as set out in condition 6.1;
Minimum Uptime means an average of at least 99% server uptime during Working Hours for the Term;
Modification means any release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software;
Personal Information shall have the meaning in the Data Protection Act 1998;
Software the ID Vista software which is provided and hosted by or on behalf of the Supplier including all updates, enhancements and Modifications of the same;
Software Service means the identity management software application services of the Supplier, as described in condition 2.2, and made available to the Customer;
Staff means any employees, officers, agents or contractors of either party;
Term means the term of this Contract for the supply of the Software Service as specified in condition 8 (Term);
User means each member of the Customer's Staff permitted to use and granted access to the Software;
Working Hours means between the hours of 9am and 5pm (UK Time) from Monday to Friday (inclusive).

2. Services and License

2.1 Subject to the Customer making payment of the Licence Fee, the Supplier shall (i) supply the Software Service to the Customer in accordance with these Conditions and as set out in the Contract, and (ii) grant to the Customer a non-exclusive and non-transferable license to use the Software during the Term solely for business use with its staff and customers.

2.2 The Software Service shall include:

2.2.1 making the Software available to the Customer to use and access the same for the purpose of operating their business, direct marketing and other related purposes and to use and upload the Customer Content;

2.2.2 creating a regular back-up of the Customer Content; and

2.2.3 making all necessary Modifications to the Software and ensuring that it is fully updated.

2.3 The Customer will obtain and maintain at its own cost and shall be responsible for, to the exclusion of the Supplier, all necessary hardware, software and telecommunications and other services required to enable the Customer to access the Software Service.

2.4 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 Software Service.

2.5 The Supplier will provide the Customer with a login and password to enable access the Software Service.

2.6 The Customer shall be responsible for keeping confidential all login and password information supplied from time to time. If the Customer becomes aware of any unauthorised access the Customer agrees to immediately notify the Supplier.

2.7 The Customer shall be solely responsible for ensuring that the permissions granted to its Staff for using the Software are current and shall be kept up to date at all times.

2.8 The Customer shall be entirely responsible for all access to the Software Service by its Staff or by any other persons accessing the Software using the Customer's login and password information (whether authorized by the Customer or not).

2.9 The Supplier shall be entitled, on prior notice to the Customer, to make changes to the Software Service, provided such changes do not have a material adverse affect on the functionality of the same.

2.10 The Supplier shall have no obligation to correct or continue to provide the Software Service where the cause or causes of any fault have been identified as having arisen from any of the following:

2.10.1 misuse or incorrect use of the Software Service;

2.10.2 use of the Software Service in combination with any unsuitable equipment or any fault in any such equipment or software; or

2.10.3 any breach of the Customer's obligations under these Conditions.

2.11 The Supplier may in its absolute discretion sub-contract the performance of any of its obligations under these Conditions.

3. Customer Conduct

3.1 The Customer shall not use the Software Service or the Software to store send or otherwise process material that is or may in the reasonable opinion of the Supplier be considered to be obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights or any other law or regulation (Inappropriate Content).
3.2 The Customer acknowledges that the Supplier has no control over any Customer Content and does not purport to monitor such content. The Supplier reserves the right to remove any Customer Content where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer if it becomes aware of any allegation that Customer Content may be Inappropriate Content.

3.3 The Customer shall indemnify and hold harmless the Supplier and its affiliates, employees, agents, contractors, directors, officers and third party providers from all liabilities, demands, costs, damages and expenses (including legal expenses) arising out of or in connection with any breach by the Customer of this clause.

4. Uptime/Availability

4.1 The Supplier shall endeavour to provide the Software Service on a continuous basis subject to these Conditions.

4.2 The Supplier shall in addition to its obligations under condition 4.1 endeavour to achieve the Minimum Uptime.

4.3 In the event that the Customer becomes aware that the Software Service is unavailable (other than as a result of notification by the Supplier under condition 4.5 below):

4.3.1 the Customer shall immediately notify the Supplier of the same; and

4.3.2 the Supplier shall endeavour to rectify faults or problems to restore the system to full operational capacity as soon as reasonably practicable.

4.4 The Customer acknowledges that the internet and the Supplier's systems, servers and equipment may from time to time be inoperative in full or in part as a consequence of factors beyond the Supplier's reasonable control, including but not limited to mechanical breakdown, maintenance, hardware or software upgrades and telecommunication connectivity problems. The Supplier will not be liable for its failure or inability to provide continuous, error free, uninterrupted services under these circumstances.

4.5 In the event of any interruption as set out in this clause, the Supplier will notify the Customer as soon as reasonably practicable of any such interruption to its ability to provide the Software Service by posting a notice on the Website or by any other reasonable means available to it.

5. Intellectual Property
5.1 The Customer acknowledges that all Intellectual Property Rights in the Software and the Software Service and any Modification belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software or the Software Service other than the right to use it in accordance with the terms of this Contract.
5.2 The Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
5.3 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the use of the Software or the Software Service (or any part thereof) in accordance with these Conditions infringes the UK Intellectual Property Rights of a third party (Infringement Claim). For the avoidance of doubt, this action shall not apply where the Infringement Claim in question is attributable to use of the Software or the Software Service (or any part thereof) by the Customer other than in accordance with these Conditions.
5.4 Condition 5.3 is conditional on:
5.4.1 the Customer notifying the Supplier in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;
5.4.2 the Customer not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of the Supplier; and
5.4.3 the Supplier having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and the Customer giving the Supplier all reasonable assistance in connection with those negotiations and such litigation at the Supplier's request and expense.
5.5 If any Infringement Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
5.5.1 procure for the Customer the right to continue using, developing, modifying or maintaining the Software or the Software Service (or any part thereof) in accordance with the terms of this Contract; or
5.5.2 modify the Software or the Software Service so that it ceases to be infringing; or
5.5.3 replace the Software with non-infringing software; or
5.5.4 terminate the Contract for the Software Service immediately by notice in writing to the Customer and refund any of the Licence Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software and the Software Service to the date of termination).
6. Fees and Payment

6.1 The Customer will pay to the Supplier the Licence Fee from the Commencement Date monthly in advance [by Direct Debit] within 14 days of the date of the Supplier's invoice which shall be issued on the last working day of each month during the Term.

6.2 The Supplier may increase the Licence Fee from time to time. The Supplier shall give the Customer prior notification of any such increase. The Customer may terminate the agreement on notice in accordance with condition 8 of this Part B below in the event that it does not agree with the level of such increase.

6.3 The Customer shall be allocated appropriate data storage and data transfer diskspace per User as set out in the Contract. In the event that such storage threshold is exceeded, then the Supplier shall invoice the Customer for additional diskspace provided this shall be added to the Licence Fee payable for the relevant month.

6.4 In the event that the Customer requests additional Users to be added, then the Licence Fee shall be increased accordingly.

6.5 In the event that the Customer wishes to reduce the number of licensed Users, the Licence Fee shall not be reduced until the expiry of the relevant period during which the reduction took place.

6.6 Without limiting any other right or remedy available to the Supplier, the Supplier may on giving seven (7) days written notice, refuse to provide access to the Software and the Software Service in the event that the Customer:

6.6.1 fails to pay any sums due to the Supplier under this Contract; or

6.6.2 otherwise defaults in the due observance and performance of this Contract.

7. Warranties

7.1 Each party warrants to the other that:

7.1.1 it has authority to enter and to perform its obligations under this Contract; and

7.1.2 it has the ability to perform its obligations under these Conditions.

7.2 The Supplier warrants to the Customer that it will not, unless in the reasonable opinion of the Supplier it is required by law to do so, access the Customer Content for any reason other than for maintenance of the Software, creating back-ups or restoring Customer Content, or as otherwise expressly set out within this Contract.

7.3 The Customer warrants to the Supplier:

7.3.1 that the Customer Content supplied by the Customer for use in conjunction with the Software will not infringe the rights of any person or contravene any law, including but not limited to the data protection principles contained within the Data Protection Act 1998 and the Customer shall otherwise comply with the Data Protection Act 1998;

7.3.2 that at the time of entering into this Contract the Customer is not relying on any representation made by the Supplier which has not been expressly set out in these Conditions.

7.4 The Supplier warrants that, to the extent it processes any Personal Information on behalf of the Customer:
7.4.1 it shall act only on instructions from the Customer; and
7.4.2 it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

7.5 No representation or warranty is given by the Supplier that all faults will be fixed or will be fixed within a specified period of time. Whilst the Supplier shall endeavour to ensure that the Software and the Software Service is free from infection, viruses and/or any other code that has contaminating or destructive properties (Contamination) the Supplier does not warrant that the Software or Software Service will be free from such Contamination.

8. Term

The Contract for the supply of the Software Service shall commence on the Commencement Date and continue for unless and until terminated by either party giving a minimum of 12 months notice in writing to the other. For the avoidance of doubt, notice to terminate cannot be served before the first anniversary of the date of this Contract.

I confirm I have read and understood, and I accept, these Terms and Conditions of Business.

Signed ..................................................................................

Print Name of Company/Businesss ...................................

Print name of Director(s)/Signatory................................

Date ..........................................