Application User Agreement

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY:

This agreement is a legal agreement between the business entity set out in either: (i) the confirmation of order terms and conditions at checkout of a purchase through the Website; or (ii) the purchase order for purchases made outside the Website (“Customer” or “You”) and Changeway Group Limited, a company registered in Scotland with Company No: SC630615 and having its registered address at 6th Floor Gordon Chambers, 90 Mitchell Street, Glasgow, Scotland, G1 3NQ (“Changeway”) and governs Your access to and use of the Software and the Documentation (“Agreement”). Each of Changeway and You are a “party” and together Changeway and You are the “parties”.

This Agreement will also apply to You where You have requested an Evaluation however the following provisions of this Agreement shall not apply to an Evaluation:

1. clause 6 (Charges);

2. clause 7.2;

3. clause 10 (Indemnity); and

4. Schedule 3 (Service Level Agreement and Support Services).

The Software and Documentation is intended for use by businesses as a business product. It is not suitable for use by consumers and these terms have been drafted on that basis.

By clicking the “accept” button at checkout, You agree to be bound by the terms of this Agreement and confirm that you have the authority to bind the Customer to this Agreement.

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation set out in Schedule 1 (Definitions and Interpretation) shall apply to this Agreement.

2. Rights of Use

2.1 Subject to the terms of this Agreement, Changeway hereby grants to You a non-exclusive, non-transferrable right (without the right to grant sub-licences) to permit the Authorised Users to use the Software and the Documentation (and any Updates and Upgrades) for Your internal business purposes during the Term.

3. Authorised Users

3.1 The Customer shall, and shall procure all Authorised Users shall, at all times, comply with all provisions of this Agreement.

3.2 You shall comply with any limits on the number of permitted Authorised Users and not permit any additional users to have access to the Software or Documentation in excess of the number of permitted Authorised Users.

3.3 Where the Customer has purchased more than one Authorised User licence, the Customer is entitled to remove an individual as an Authorised User and replace them with another individual in accordance with the terms of this Agreement, but accounts created for Authorised Users cannot be shared or used by more than one individual at the same time. An Authorised User may be able to access the Software on up to two (2) separate devices simultaneously.

3.4 The Customer shall not knowingly access, store, distribute or transmit any viruses, or any material during the course of its use of the Software and/or the Support Services that:

3.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

3.4.2 infringes any rights of third parties;

3.4.3 facilitates illegal activity;

3.4.4 depicts sexually explicit images;

3.4.5 promotes unlawful violence;

3.4.6 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

3.4.7 is otherwise illegal or causes damage or injury to any person or property.

3.5 The Customer shall not:

3.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or

(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(c) access all or any part of the Software and/or Documentation in order to build a product or service which competes with the Software and/or the Documentation; or

(d) use the Software and/or Documentation to provide services to third parties; or

(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorised Users; or

(f) attempt to obtain, or assist third parties in obtaining, access to the Software, Documentation and/or Support Services, other than as provided under this Agreement.

3.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, Documentation and/or the Support Services and, in the event of any such unauthorised access or use, shall promptly notify Changeway.

4. CHANGEWAY OBLIGATIONS

4.1 In consideration of either: (i) the payment of the Subscription Charges; or (ii) the Customer requesting an Evaluation, Changeway shall, during the Term, make available the Software and the Documentation to the Customer on and subject to the terms of this Agreement.

4.2 Changeway may suspend access to the Software to all or some of the Authorised Users if: (i) Changeway suspects that there has been any misuse of the Software, Documentation or a breach of this Agreement by the Customer; or (ii) in accordance with clause 6.5.1 of this Agreement. Where the reason for the suspension is suspected misuse of the Software, the Documentation or breach of this Agreement, without prejudice to its rights under this Agreement, Changeway will take steps to investigate the issue and may restore or continue to suspend access at its discretion

4.3 Changeway shall have the right, at its sole discretion, to accept or decline at any time an application for an Evaluation, Monthly Subscription, Annual Subscription or Fixed Term Subscription or cancel any the foregoing without liability to the Customer within five (5) Business Days of the Effective Date. Where Changeway exercises its right under this clause 4.3, it shall refund to the Customer any Charges paid in advance by the Customer.

4.4 Subject to clause 4.6, the Company shall, in consideration of the Support Charges, provide the Support Services during Business Hours during the Term.

4.5 Changeway shall make the Software available twenty-four (24) hours a day, seven (7) days a week, except for:

4.5.1 planned maintenance carried out during the maintenance window of 12.00 am to 6.00 am UK time; and

4.5.2 unscheduled maintenance, provided that Changeway has used reasonable endeavours to provide the Customer with notice in advance.

4.6 Support Services will not be made available to the Customer during an Evaluation. During an Evaluation, Changeway will provide the Customer with self-service access free of charge to the ‘Manage Access’ and ‘Online Support Centre’ via the Website for the Evaluation Term and reasonable additional support services will be provided to the Customer at Changeway’s sole discretion.

5. Updates and Upgrades

5.1 The Customer acknowledges that Changeway shall be entitled to modify the features and functionality of the Software by means of an Update or Upgrade.

5.2 Changeway shall use reasonable endeavours to ensure that such Updates or Upgrades do not adversely affect the use of the Software by the Customer or the Authorised Users.

6. Charges

6.1 The Charges and any other charges expressly agreed between the parties in writing shall be paid by the Customer at the rates and in the manner described on either:

6.1.1 the eCommerce pages of the Website which lists the published prices for the Software; or

6.1.2 the formal quotation provided by Changeway for specific customers.

6.2 The currency of this Agreement is pounds sterling and all amounts due under this Agreement shall be invoiced in pounds sterling.

6.3 All undisputed invoices shall be paid by the Customer:

6.3.1 in respect of a Monthly Subscription, on the Effective Date and thereafter on or around the anniversary of the Effective Date in each calendar month; or

6.3.2 in respect of an Annual Subscription, annually in advance on the Effective Date and thereafter on each anniversary of the Effective Date; or

6.3.3 where Changeway provides the Customer with an invoice, within thirty (30) calendar days of the Customer’s receipt of the relevant invoice, (each (as applicable) the (“Due Date”)).

6.4 The Charges are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.

6.5 If Changeway has not received payment within: (i) five (5) days of the Due Date in respect of a Monthly Subscription; or (ii) ten (10) days of the Due Date in respect of an Annual Subscription or Fixed Term Subscription, and without prejudice to any other rights and remedies of Changeway:

6.5.1 Changeway may, without liability to the Customer, disable the Authorised User’s password, account and access to all or part of the Software and Changeway shall be under no obligation to provide the Customer with access to the Software or provide the Support Services while the invoice(s) concerned remain unpaid; and

6.5.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

6.6 Changeway shall be entitled to increase the Charges at the start of each: (i) Monthly Renewal Term; or (ii) Annual Renewal Term(as applicable) upon:

6.6.1 in respect of a Monthly Renewal Term, thirty (30) days prior notice to the Customer and the Charges shall be deemed to have been amended accordingly; or

6.6.2 in respect of an Annual Renewal Term, sixty (60) days’ prior notice to the Customer and the Charges shall be deemed to have been amended accordingly.

6.7 This clause 6 will not apply where a Customer has requested an Evaluation.

7. Warranties

7.1 Each party warrants and undertakes that:

7.1.1 it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and

7.1.2 it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of the its obligations under this Agreement.

7.2 Changeway warrants to the Customer that:

7.2.1 the Software will incorporate security features reflecting the requirements of Good Industry Practice; and

7.2.2 the Software when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any third party.

7.3 The warranties under clause 7.2 shall not apply to an Evaluation.

8. Customer’s Responsibilities

8.1 The Customer shall (and shall ensure all its Authorised Users shall):

8.1.1 at all times comply with all applicable laws relating to:

(a) the use or receipt of the Software or the Support Services; and

(b) its obligations under this Agreement;

8.1.2 provide Changeway with all necessary co-operation in relation to this Agreement and access to such information as may be required by Changeway in order to meet its obligations under this Agreement;

8.1.3 carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;

8.1.4 ensure that the Authorised Users use the Software, the Documentation and the Support Services in accordance with the terms of this Agreement;

8.1.5 ensure that its network and systems comply with the relevant specifications provided by Changeway from time to time; and

8.1.6 be, to the extent permitted by applicable law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Changeway’s systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

9. Intellectual Property

9.1 All Intellectual Property Rights in and to the Software (including any source code), the Documentation and the Support Services belong to and shall remain vested in Changeway or the relevant third-party owner.

9.2 Subject to clause 9.5, all Intellectual Property Rights in and to the information (including Customer Data) that is contained in reports, brainstorm canvases, digital notes, templates, summary screens and metrics, spreadsheets and all other output generated by the Customer’s use of the Software belong to and shall remain vested in the Customer. The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for Changeway to use, copy and other otherwise utilise such data and the Customer Data to the extent necessary to provide the Software and the Support Services or to exercise or perform Changeway’s rights, remedies and obligations under this Agreement.

9.3 Except for the rights expressly granted in this Agreement, the Customer and any Authorised Users and their direct and indirect sub-contractors, shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Software or the Support Services and no Intellectual Property Rights of either party are transferred or licensed as a result of this Agreement.

9.4 Changeway may use any feedback and suggestions for improvement relating to the Software, the Documentation or the Support Services provided by the Customer, or any Authorised User without charge or limitation (“Feedback”). The Customer hereby assigns (or shall procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Changeway at the time such Feedback is first provided to Changeway.

9.5 Customer agrees that Changeway may collect, use, and disclose quantitative data derived from the use of the Software and Documentation for its business purposes, including industry analysis, benchmarking, analytics, and marketing. All data collected, used, and disclosed will be in aggregate and anonymised form only and will not identify Customer or its Authorised Users.

9.6 This clause 9 shall survive the termination or expiry of this Agreement.

10. Indemnity

10.1 Subject to this remainder of this clause 10 and clause 13 (Limitation of Liability), Changeway shall indemnify and keep the Customer indemnified at all times for all costs and damages awarded or agreed in settlement or final judgment of a Third Party Claim, provided that:

10.1.1 Changeway is given prompt notice of any such claim;

10.1.2 the Customer provides reasonable co-operation to Changeway in the defence and settlement of such claim, at Changeway’s expense; and

10.1.3 Changeway is given sole authority to defend or settle the claim.

10.2 If Changeway reasonably determines, or any third party alleges, that the use of the Software, the Documentation or the Support Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, Changeway shall at its own cost and option:

10.2.1 modify the Software, the Documentation or the Support Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

10.2.2 procure for the Customer the right to use the Software, the Documentation or Support Services in accordance with this Agreement.

10.3 Changeway shall have no liability or obligation under this clause 10 in respect of (and shall not be obliged to defend) any Third Party Claim which arises from:

10.3.1 any breach of this Agreement by the Customer; or

10.3.2 use of the Software, the Documentation or Support Services (or any part) otherwise than in accordance with this Agreement; or

10.3.3 a modification of the Software, the Documentation or Support Services by anyone other than Changeway; or

10.3.4 the Customer’s use of the Software, the Documentation or Support Services in a manner contrary to the instructions given to the Customer by Changeway; or

10.3.5 the Customer’s use of the Software, the Documentation or Support Services after notice of the alleged or actual infringement from Changeway or any appropriate authority.

10.4 This clause 10 shall not apply to an Evaluation.

11. Data protection

11.1 Each party shall comply with its respective obligations under Schedule 2 (Data Protection) of this Agreement.

12. Confidential Information

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

12.2 Each party undertakes to:

12.2.1 disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under this Agreement and:

(a) shall procure that such persons are made aware of and agree in writing to observe the obligations in this clause 12; and

(b) shall be responsible for the acts and omissions of such third parties as if they were that party’s own acts or omissions.

12.3 The provisions of this clause 12 shall not apply to information which:

12.3.1 is or comes into the public domain through no fault of the receiving party, its officers, employees, agents or contractors;

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

12.3.3 is independently developed by the receiving party, without access to or use of the disclosing party’s Confidential Information; or

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

12.4 This clause 12 shall survive the termination or expiry of this Agreement.

13. Limitation of Liability

13.1 Notwithstanding any other provision of this Agreement, neither party’s liability shall be limited in any way in respect of the following:

13.1.1 death or personal injury caused by negligence;

13.1.2 fraud or fraudulent misrepresentation; or

13.1.3 any other liability which cannot be excluded or limited by applicable law.

13.2 Neither party shall be liable to the other party whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:

13.2.1 loss of profit;

13.2.2 loss of goodwill;

13.2.3 loss of business;

13.2.4 loss of anticipated savings; and/or

13.2.5 special, indirect or consequential loss.

13.3 Subject to clauses 13.1, 13.2 and 13.4, Changeway’s total aggregate liability howsoever arising under or in connection with this Agreement (including under any indemnity) in each Contract Year shall not exceed an amount equal to the Charges paid to Changeway in the Contract Year in which the event giving rise to the claim arose.

13.4 Subject to clauses 13.1 and 13.2 and in respect of an Evaluation only, Changeway’s total aggregate liability howsoever arising under or in connection with this Agreement (including under any indemnity) shall not exceed one thousand pounds sterling (£1,000).

13.5 Except as expressly and specifically provided in this Agreement:

13.5.1 the Customer assumes sole responsibility for results obtained from the use of the Software by the Customer, and for conclusions drawn from such use. Changeway shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Changeway by the Customer in connection with the Software, or any actions taken by Changeway at the Customer’s direction;

13.5.2 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

13.5.3 the Software and the Documentation are provided to the Customer on an “as is” basis.

14. Term and Termination

14.1 Subject to clause 14.2, this Agreement shall come into force on the Effective Date and shall continue for:

14.1.1 in respect of a Monthly Subscription, the Monthly Subscription Initial Term and thereafter the Agreement shall renew for successive periods of one (1) month (“Monthly Renewal Term”); or

14.1.2 in respect of an Annual Subscription, the Initial Term and thereafter the Agreement shall renew for successive periods of twelve (12) months (each a “Annual Renewal Term”); or

14.1.3 in respect of a Fixed Subscription, the Fixed Subscription Term and the Customer shall have the right to extend the Fixed Subscription Term for a maximum period of three (3) months on the same contractual and commercial terms provided the parties have entered into good faith discussions to negotiate a further Fixed Subscription,

unless:

14.1.4 either party notifies the other party of termination, in writing:

(a) in respect of a Monthly Subscription, at least ten (10) days before the end of the Monthly Subscription Initial Term or any Monthly Renewal Term, in which case this Agreement shall terminate upon the expiry of the Monthly Subscription Initial Term or any Monthly Renewal Term (as applicable); or

(b) in respect of an Annual Subscription, at least forty-five (45) days before the end of the Initial Term or any Annual Renewal Term, in which case this Agreement shall terminate upon the expiry of the Initial Term or Annual Renewal Term (as applicable); or

(c) in respect of the Fixed Subscription Term, at least sixty (60) days before the end of the Fixed Subscription Term, in which case this Agreement shall terminate upon the expiry of the Fixed Subscription Term; or

14.1.5 otherwise terminated earlier in accordance with this Agreement.

14.2 If You have requested an Evaluation, this Agreement shall come into force on the Effective Date and shall continue for a period of fourteen (14) calendar days unless terminated earlier in accordance with this Agreement (“Evaluation Term”). Changeway shall have the right to terminate an Evaluation at any time by providing notice to the Customer in writing.

14.3 Either party may terminate this Agreement immediately at any time by giving notice in writing to the other party if:

14.3.1 the other party commits a material breach of this Agreement and such breach is not remediable;

14.3.2 the other party commits a material breach of this Agreement which is not remedied within fifteen (15) days of receiving written notice of such breach;

14.3.3 the other party is subject to an Insolvency Event; or

14.3.4 any Force Majeure Event prevents the other party from performing its obligations under this Agreement for any continuous period of three (3) months.

15. Consequences of Termination

15.1 On termination or expiry of this Agreement (for any reason):

15.1.1 the Customer shall, and shall procure that each Authorised User shall stop using the Software, the Documentation and the Support Services;

15.1.2 subject to clause 4.3, the Customer shall make payment of all Charges properly due and payable up to the date of termination; and

15.1.3 each party shall destroy and delete any copies of the other party’s Confidential Information in its possession or control (or in the possession or control of any person acting on its behalf).

15.2 Termination or expiry of this Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of this Agreement that is expressly or by implication intended to continue beyond termination.

16. Force Majeure

16.1 Provided that it has complied with clause 16.2, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.

16.2 The Affected Party shall:

16.2.1 as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party in writing of such Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of such Force Majeure Event on its ability to perform any of its obligations under this Agreement; and

16.2.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

17. ANTI-BRIBERY AND Corruption

17.1 Changeway shall comply with all applicable laws, statutes, regulations, relating to anti-bribery and anti-corruption including the Bribery Act 2010.

18. Entire Agreement

18.1 This Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral. Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement.

19. Notices

19.1 Any notice given by a party under this Agreement shall be:

19.1.1 in writing and in English; and

19.1.2 sent to the relevant party either:

(a) by hand to its registered company address; or

(b) by pre-paid first-class post or other next working day delivery service to its registered company address; or

(c) by email to (i) Changeway at: admin@changeway.co; or (ii) the Customer at the email address provided by the Customer at the point of acceptance of this Agreement.

19.2 Any notice shall be deemed to have been delivered:

19.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the registered address of the other party; or

19.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the third Business Day after posting or at the time recorded by the delivery service; or

19.2.3 if sent by email, at the point of delivery provided confirmation of receipt has been provided by the other party.

19.3 Any change to the contact details of a party shall be effective:

19.3.1 on the date specified in the notice as being the date of such change; or

19.3.2 if no date is so specified five (5) Business Days after the notice is deemed to be received.

20. Variation

20.1 No variation of this Agreement shall be valid or effective unless it is made in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

21. AssignMENT and Subcontracting

21.1 Changeway shall have the right to assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without the Customer’s consent.

21.2 The Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under this Agreement (including the licence rights granted), in whole or in part, without Changeway’s prior written consent (such consent not to be unreasonably withheld or delayed).

22. No Partnership or Agency

The parties are independent and are not partners or principal and agent and this Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

23. Severance

23.1 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of this Agreement shall not be affected.

23.2 If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.

24. Waiver

24.1 No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.

24.2 A waiver of any term, provision, condition or breach of this Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.

25. 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.

26. Dispute Resolution

26.1 Any dispute between the parties that is not resolved informally between the parties must be referred in writing by either party to a representative of the other party. If upon expiry of ten (10) Business Days following referral to the representative, the dispute remains unresolved, the dispute may be referred to a director of each party to attempt to resolve.

26.2 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 26.1 have been completed.

27. Governing Law and jurisdiction

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 & Wales. Each party irrevocably agrees that the courts of England & 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).

Schedule 1

Definitions and Interpretation

1. In this Agreement:

“Annual Subscription” means the Customer’s annual subscription to access and use the Software and Support Services subject to the payment of the Charges;

“Annual Renewal Term” has the meaning given in clause 14.1.2;

“Authorised Users” means the employees and contractors of the Customer who are authorised by the Customer to use the Software and Documentation;

“Business Day” means a day other than a Saturday, Sunday or bank or public holiday in the United Kingdom;

“Business Hours” means 9am-5pm (UK time) on Business Days;

“Charges” means the charges payable by the Customer to Changeway in accordance with this Agreement and includes:

(a) the Subscription Charges; and

(b) the Support Charges;

“Confidential Information” means information that is either clearly labelled as confidential, is of a confidential nature or would appear to a reasonable person to be confidential, and shall include all (i) know-how, trade secrets, financial, commercial, technical, tactical or strategic information of any kind and the terms of this Agreement, (ii) all information produced or developed in the performance of this Agreement; (iii) Customer Data; and (iv) the Software, the Documentation and the results of any performance tests in relation to the Software;

“Contract Year” means the period of twelve (12) months from the Effective Date and each subsequent period of twelve (12) months commencing on the anniversary of the Effective Date;

“Customer Data” means all data in any form (including Customer Personal Data (as defined in Schedule 2 (Data Protection)) that is provided to Changeway or uploaded or hosted on any part of the Software by the Customer, or by any Authorised User, or generated for the Customer by Changeway in providing the Software but does not include any Changeway Confidential Information or any part of the Software or Documentation;

“Documentation” means the documentation relevant to the Software as provided by Changeway to the Customer through the support centre or within the Software itself from time to time;

“Due Date” has the meaning given in clause 6.3;

“Effective Date” means the date the Customer clicks the “accept” button at checkout and enters in to this Agreement;

“Evaluation” means the provision by Changeway of free of charge access to the Software and the Documentation for the Evaluation Term in accordance with and subject to the terms of this Agreement in order for the Customer to evaluate whether it wishes to proceed to purchasing a full subscription to the Software;

“Evaluation Term” has the meaning given in clause 14.2;

“Exclusion” has the meaning given in paragraph 5 of Schedule 3 (Service Level Agreement and Support Services);

“Fixed Subscription” means the Customer’s fixed term subscription to access and use the Software and Support Services subject to the payment of the Charges;

“Fixed Subscription Term” means the duration of the Customer’s subscription as agreed in writing by the parties and which is not a Monthly Subscription or Annual Subscription;

“Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation (a) acts of God, flood, drought, earthquake or other natural disasters; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; and (h) interruption or failure of utility service;

“Good Industry Practice” means the degree of skill and diligence which would reasonably be expected from a skilled and experienced person engaged in the same type of undertaking under the same or similar circumstances;

“Incident” means an unplanned interruption to the availability of the Software which is not due to an Exclusion;

“Initial Term” means a period of twelve (12) months from the Effective Date;

“Insolvency Event” means, where (i) a party becomes insolvent or unable to pay its debts as and when they become due; (ii) an order is made or a resolution is passed for the winding up of a party (other than voluntarily for the purpose of solvent amalgamation or reconstruction); (iii) a liquidator, administrator, administrative receiver, receiver, or trustee is appointed in respect of the whole or any part of a party’s assets or business; (iv) a party makes any composition with its creditors; (v) a party ceases to continue its business; or (vi) as a result of debt or maladministration a party takes or suffers any similar or analogous action in any jurisdiction;

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

(a) whether registered or not;

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

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

(d) whether vested, contingent or future; and

(e) wherever existing;

“Monthly Renewal Term” has the meaning given in clause 14.1.1

“Monthly Subscription” means the Customer’s monthly subscription to access and use the Software and Support Services subject to the payment of the Charges;

“Monthly Subscription Initial Term” means one (1) calendar month;

“Schedule” means a schedule to this Agreement;

“Service Availability” means the uptime of the Software, which is calculated as a percentage by taking the total number of minutes in a calendar month, then subtracting the number of minutes of Service Interruption suffered in that calendar month, divided by the total number of minutes in that calendar month, multiplied by 100;

“Service Interruption” means, except for the period of time when the Software is unavailable where Changeway is in compliance with clause 4.5, the period of time that the Software is either (a) not available for Customer (or any Authorised User) log-in or (b) substantially not functioning;

“Service Levels” means the service levels set out Schedule 3 (Service Level Agreement and Support Services);

“Software” means the Changeway application (including associated modules) and shall include any Upgrade and/or Update;

“Subscription Charges” means the charges payable by the Customer for access to the Software;

“Support Charges” means the charges payable by the Customer for the provision of the Support Services;

“Support Services” means the support services provided by Changeway to the Customer as described in Schedule 3 (Service Level Agreement and Support Services);

“Term” means (as applicable to the Customer) either:

(a) the Monthly Subscription Initial Term and any Monthly Renewal Term; or

(b) the Initial Term and any Annual Renewal Term(s); or

(c) the Fixed Subscription Term; or

(d) where the Customer has requested an Evaluation, the Evaluation Term.

“Third Party Claim” means any claim brought by a third party against the Customer, which arises in connection with the Customer’s use of the Software, the Documentation or the Support Services;

“Update” means a hotfix, patch or minor version update to the Software;

“Upgrade” means a major version upgrade to the Software;

“VAT” means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom; and

“Website” means www.changeway.co as may be updated by Changeway from time to time.

2. In this Agreement, unless otherwise stated:

2.1 words in the singular include the plural and vice versa;

2.2 any words that follow “include”, “includes”, “including”, “in particular” or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and

2.3 a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time.

Schedule 2

DATA Protection

1. DEFINTIONS

1.1 In this Schedule 2, the following definitions shall apply:

1.1.1 “Controller”, “Data Subject”, “International Organisation”, “Personal Data”, “Personal Data Breach”, “Processor” and “processing” shall have the respective meanings given to them in applicable Data Protection Laws from time to time (and related expressions, including “process”, “processed” and “processes” shall be construed accordingly);

1.1.2 “Customer Personal Data” means Personal Data received from or on behalf of the Customer in connection with the performance of Changeway’s obligations under this Agreement and which is stored or processed in the Software and as described in Annex A to this Schedule 2;

1.1.3 “Data Protection Laws” means, as binding on either party, all applicable laws relating to the security and processing of Personal Data and shall include:

(a) the GDPR;

(b) the Data Protection Act 2018;

(c) any laws which implement any such laws; and

(d) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;

1.1.4 “GDPR” means the General Data Protection Regulation, Regulation (EU) 2016/679; and

1.1.5 “Sub-Processor” means any agent, subcontractor or other third party (excluding its employees) engaged by Changeway for carrying out any processing activities on behalf of the Customer in respect of the Customer Personal Data.

2. DATA PROCESSING TERMS

2.1 Subject to paragraph 3 of this Schedule 2, the parties agree that the Customer is a Controller and that Changeway is a Processor for the purposes of processing Customer Personal Data pursuant to this Agreement. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Customer Personal Data. The Customer shall ensure all instructions given by it to Changeway in respect of Customer Personal Data shall at all times be in accordance with Data Protection Laws.

2.2 The Customer warrants, represents and undertakes, that all Customer Personal Data shall comply in all respects, including in terms of its collection, storage and processing (which shall include the Customer providing all of the required fair processing information to, and obtaining all necessary consents from, Data Subjects), with Data Protection Laws.

2.3 The Customer acknowledges and agrees that it shall be responsible for ensuring compliance with Data Protection Laws to the extent that it instructs Changeway to make available certain meeting invites, meeting contents and other information held within the Software available for access to the Customer’s employees, contractors or suppliers located outside the United Kingdom and European Economic Area (including ensuring that appropriate mechanisms are in place in compliance with Data Protection Laws to enable such access).

2.4 Changeway shall process Customer Personal Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Agreement.

2.5 Instructions

2.5.1 Changeway shall:

(a) only process (and shall ensure Changeway personnel only process) the Customer Personal Data in accordance with this clause 2 and Annex A (Processing Particulars) to this Schedule 2 except to the extent:

(i) that alternative processing instructions are agreed between the parties in writing; or

(ii) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and

(b) without prejudice to paragraph 2.1 of this Schedule, if Changeway believes that any instruction received by it from the Customer is likely to infringe Data Protection Laws, it shall promptly inform the Customer.

2.6 Security and Personnel

2.6.1 Taking into account the state of technical development and the nature of processing, Changeway shall implement and maintain appropriate technical and organisational measures to protect the Customer Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

2.6.2 Changeway shall ensure that all persons authorised by it to process Customer Personal Data are subject to a binding written contractual obligation to keep the Customer Personal Data confidential (except where disclosure is required in accordance with applicable law, in which case Changeway shall, where practicable and not prohibited by applicable law, notify the Customer of any such requirement before such disclosure).

2.7 Assistance

2.7.1 Changeway shall (at the Customer’s cost):

(a) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to Changeway; and

(b) at the Customer’s cost, taking into account the nature of the processing, assist the Customer (and by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests by Data Subjects exercising the rights of Data Subjects under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Customer Personal Data.

2.8 International Transfers

2.8.1 Changeway shall not process and/or transfer any Customer Personal Data in or to countries outside the United Kingdom and the European Economic Area or to any International Organisation without the prior written consent of the Customer.

2.9 Audits and Processing

2.9.1 Changeway shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate Changeway’s compliance with the obligations placed on it under this Schedule, and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any twelve (12) month period under this paragraph 2.9.1 of this Schedule).

2.10 Subcontracting

2.10.1 Changeway may engage any Sub-Processor for carrying out any processing activities in respect of the Customer Personal Data without Your prior consent. Before appointing any Sub-Processor, Changeway shall inform You of the appointment (including the name and location of such Sub-Processor and the activities it will perform). You may object to the appointment of the Sub-processor by giving written notice to Changeway within ten (10) days of being informed by Changeway of such appointment.

2.10.2 Changeway shall:

(a) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Customer Personal Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this Schedule 2; and

(b) remain fully liable to the Customer under this Agreement for all acts and/or omissions of its Sub-Processor as if they were its own.

2.11 Personal Data Breach

2.11.1 Changeway shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Customer Personal Data.

2.12 Deletion and Return of Customer Personal Data

2.12.1 On termination or expiry of this Agreement, at the Customer’s cost and the Customer’s option, Changeway shall either return all of the Customer Personal Data to the Customer or securely dispose of the Customer Personal Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires Changeway to store such Customer Personal Data.

3. CHANGEWAY AS DATA CONTROLLER

3.1 The parties acknowledge and agree that Changeway acts as a separate and independent Controller solely in respect of Customer Personal Data processed in the context of this Agreement (as set out in paragraph 3.3 of this Schedule 2) in the following circumstances:

3.1.1 conducting internal analytics for the development and improvement of the Software and Changeway’s products and/or services;

3.1.2 authenticating the contact information (e.g. name, email address and company) of Authorised Users and maintaining the security of the Application; and

3.1.3 marketing Changeway products and/or services to Authorised Users where requested by Authorised Users.

3.2 In respect of its processing in accordance with clause 3.1 of this Schedule, Changeway shall be responsible for ensuring that it complies with the requirements placed on it as a Controller under Data Protection Laws.

3.3 The following Customer Personal Data may be processed by Changeway for the purposes set out in this paragraph 3:

3.3.1 full name;

3.3.2 company name; and

3.3.3 contact details (including company email address, business address and postcode and company telephone number).

Annex A

Processing Particulars

Processing of the Customer Personal Data by Changeway under this Agreement shall be for the subject-matter, duration, nature and purposes and involve the types of personal data and categories of Data Subjects set out below:

1. Subject-matter of processing:

The subject matter of the processing is to allow Changeway to make available the Software to the Customer for use within its business and provide the Support Services.

2. Duration of the processing:

The duration of the processing shall be for the Term of the Agreement unless Changeway is required to process Customer Personal Data beyond the date of termination of this Agreement in order to comply with applicable laws and/or regulations.

3. Nature and purpose of the processing:

Changeway shall provide the Software to allow the Customer to input, access and store Customer Personal Data in the Software as part of accessing the functionality of the Software which will be provided to the Customer as a software as a service solution. The purpose of the processing is to allow Changeway to make the Software and Support Services available to the Customer in accordance with the terms of this Agreement.

The Software allows the Customer to run their activities completely digitally on touchscreens allowing direct capture of searchable enterprise change data.

4. Type of Personal Data:

The following types of Personal Data may be processed by Changeway:

• full name;
• contact information (including company telephone numbers and company email addresses);
• company address and postcode;
• job role;
• workshop role;
• business cases, status of actions, changes in metrics/KPIs, transformation plans and other business information uploaded to the Software by the Customer directly that include Personal Data; and
• photographs (only to the extent that an Authorised User has voluntarily uploaded their photograph to the Software).

5. Categories of Data Subjects:

The following categories of Data Subjects shall be captured under this Agreement:

• employees and contractors of the Customer and Customer suppliers.

SCHEDULE 3

SERVICE LEVEL AGREEMENT AND SUPPORT SERVICES

1. SERVICE LEVELS and service availability

1.1 Support Services

1.1.1 The Software will have a Service Availability of at least 99.9% in any calendar month (the “Service Availability SLA”).

1.2 Software Reliability SLAs

1.2.1 Changeway has designed the Software to be resilient and reliable. Changeway shall therefore ensure that:

(a) there are no more than six (6) Incidents classified as either ‘critical’ or ‘high’ in any twelve (12) month period following the Effective Date; and

(b) the mean time between Incidents is equal to or greater than fourteen (14) days,

(together “Service Reliability SLAs”).

2. SUPPORT SERVICES AVAILABILITY

2.1 Support availability

2.1.1 Support Services shall be provided during Business Hours.

2.1.2 The ‘Online Support Centre’ and the ‘Manage Access’ centre shall be available through the Website with the same Service Availability SLA as the Software.

3. INCIDENT MANAGEMENT

3.1 Notification of Incidents

3.1.1 All Incidents will be notified to Changeway by the Customer at the following email address support@changeway.co .

3.2 Measuring elapsed time for Incident

3.2.1 In order to measure the resolution time of an Incident, Changeway will calculate the time elapsed between the time the Incident is notified to Changeway (in accordance with paragraph 3.1.1 above) and the time the Incident is resolved by Changeway.

3.2.2 When the Incident is reported outside the Business Hours, the Incident is deemed to be notified to Changeway at the beginning of the next Business Hour.

3.3 Resolution times for Incidents

3.3.1 The agreed resolution time for each Incident depends on its priority as set in the table below in this paragraph 3.3 (the “Agreed Resolution Time SLAs”). The severity level of the Incident will be determined by Changeway acting reasonably.

4. SERVICE CREDITS

4.1 Where the Service Availability SLA is not met in a particular month, the “Service Credits” as set out in the table below shall be due by Changeway to the Customer:

4.2 Where the Service Reliability SLAs are not met, the following Service Credits shall be due by Changeway to the Customer:

4.2.1 “Service Credits” means 5% discount of the applicable monthly Subscription Charges for the month in which the Service Level is not met.

4.3 Where the Agreed Resolution Time SLAs are not met, the following Service Credits shall be due by Changeway to the Customer:

4.3.1 “Service Credits” means 5% discount of the applicable monthly Subscription Charges for the month in which the Service Level is not met.

4.4 The maximum applicable “Service Credit” in any calendar month shall not exceed 20% of the applicable monthly Subscription Charges in aggregate.

4.5 In respect of an Annual Subscription, any reference to “applicable monthly Subscription Charges” in this paragraph 4 in relation to the calculation of Service Credits shall be interpreted as reference to the total annual Subscription Charges divided by twelve.

4.6 Any Service Credits due to the Customer under this paragraph 4 shall be deducted from the subsequent invoice issued by Changeway or payment made by the Customer under this Agreement in relation to the Subscription Charges, unless there are no further invoices to be issued or payments to be made in which case Changeway shall pay the Customer the Service Credits to a bank account notified to Changeway by the Customer within thirty (30) days of the expiry of the month on which the Service Credits became due.

4.7 Service Credits shall be the Customer’s sole and exclusive remedy in respect of any failure to achieve the Service Levels.

5. EXCLUSIONS

5.1 Changeway shall be relieved of its liability in respect of any failure to provide the Support Services to the Service Levels and make payment of any Service Credits, to the extent that, such failure is attributable to any of the following

5.1.1 a failure by the Customer to observe any of its obligations under this Agreement; or

5.1.2 a Force Majeure Event,

in each case an “Exclusion”.