ORTOO LIMITED – Q-ASSIGN END USER LICENCE AGREEMENT####Please read this End User Licence Agreement (“Licence Agreement”) carefully. By downloading and/or using all or any part of the Software, you (“Licensee”) indicate your acceptance of the following terms from Ortoo Limited, 124 City Road, London, EC1V 2NX, United Kingdom ##(“ ORTOO”). The Licensee agrees to be bound by all the terms and conditions of this Licence Agreement. The Licensee agrees that it is enforceable as if it were a written negotiated agreement signed by the Licensee. If the Licensee does not agree to the terms of this Licence Agreement, the Licensee shall not download and/or use the Software. If you are entering into this Licence Agreement on behalf of a company or other legal entity, you hereby represent that you have the authority to bind such entity to this Licence Agreement, in which case the term “Licensee” shall be construed to refer to such entity. The Licensee is advised to print and keep a copy of this Licence Agreement for future reference.####NOW IT IS HEREBY AGREED AS FOLLOWS:####1. DEFINITIONS####“Confidential Information” means, in respect of a party to this Licence Agreement, any information disclosed by that party to the other party during the term of the Licence Agreement that at the time of disclosure: (a) was marked as "confidential"; (b) was described by that party as "confidential"; or (c) could reasonably have been understood by the other party to be confidential;####“Content” means information obtained by ORTOO from ORTOO’s content licensors or publicly available sources and provided to the Licensee;####“Designated Support Timezone” means a specific, fixed, timezone selected by Licensee out of the list of allowable timezones that Ortoo supports, and used to determine Working Hours and working days for support purposes;####“Documentation” means the electronic user manual or online help site for the Software which is either supplied to the Licensee with the Software or made available to the Licensee on the Salesforce Platform;####“Effective Date” means the date on which the Licensee first downloads and/or uses all or any part of the Software;####“Licence Agreement Period” means either: (a) a trial period; or (b) a period of 12 months (or such other period as ORTOO may have expressly agreed in writing) which renews for successive periods of the same duration unless terminated in accordance with Clause 5.3, in respect of which the Licensee has paid the Licence Fees or has committed to pay the Licence Fees;####“Licence Fees” means the yearly subscription fees per User payable to ORTOO, details of which are set out on invoices supplied by ORTOO, and can be provided on request;####“Licensee Data” means electronic data and information submitted by or for the Licensee to the Software or collected or processed by or for the Licensee using the Software, excluding Content.####“Minimum Requirements” means the minimum technical specification required to enable the Software to function in accordance with the Documentation and/or at all, as set out in the Documentation and/or on the Salesforce Platform;####“Salesforce” means SFDC UK Ltd, Block Two, Lotus Park, The Causeway, Staines, Middlesex TW18 3AG, the provider of the Salesforce Platform;####“Salesforce Platform” means the CRM system provided by Salesforce and available via www.salesforce.com or any such unique resource locator as designated by Salesforce;####“Software” means the object code form of ORTOO’s “Q-Assign” software;####“User” means each individual user who has access to and use of the Software, including each Member (user or queue) of Assignment Groups within the Software, subject to this Licence Agreement; ####“Working Hours” means 8.00am to 6.00pm in London or in Designated Support Timezone if one has been selected by Licensee and agreed with Ortoo, and excludes weekends and public holidays.####2. GRANT OF RIGHTS; RESTRICTIONS####2.1 Subject to all the terms and conditions of this Licence Agreement and in consideration for the payment of the Licence Fees, ORTOO hereby grants the Licensee a worldwide, non-exclusive, non-transferable licence to use the Software in accordance with the Documentation, within one Salesforce Organisation, the Salesforce Org Id of which will be listed on the invoice for the duration of the Licence Agreement Period, including any renewals. Such use shall be for the Licensee’s internal purposes only. Save to the extent that ORTOO expressly agrees otherwise in writing, the licence is in respect of use of the Software by the Licensee and fully owned subsidiaries only. The licence is terminable in accordance with the express provisions of this Licence Agreement, including clauses 2.4, 4.7 and 5.1.####2.2 Except as expressly permitted in this Licence Agreement, the Licensee shall not, and shall not permit others to: (a) modify, translate, create derivative copies of or copy the Software (other than one backup copy which reproduces all proprietary notices), in whole or in part; (b) reverse engineer, decompile, disassemble or otherwise reduce the object code of the Software to source code form; (c) distribute, sub-license, assign, share, time-share, sell, rent, lease, grant a security interest in, use for service bureau purposes, or transfer the Software or Licensee’s right to use the Software; (d) remove or modify any copyright, trademark, or other proprietary notices of ORTOO contained within the Software; or (e) use the Software in any manner not expressly authorised by this Licence Agreement.####2.3 The Licensee must ensure that all Users comply with the terms of this Licence Agreement. During the Licence Agreement Period, the Licensee shall not decrease the number of licensed Users or Emails Per Month. If the Licensee wishes to increase the number of licensed Users, the Licensee must submit a written request to do so to ORTOO. ORTOO shall be entitled to accept or reject such requests at its sole discretion. If ORTOO accepts the Licensee’s request under this clause 2.3, the Licensee shall pay the applicable Licence Fees. The Licensee must have at least 20 User licences at all times during the term of this Licence Agreement.####2.4 The Licensee shall provide ORTOO with such access to the Licensee’s systems as may be reasonably required for ORTOO to confirm that the Software is being used in accordance with this Licence Agreement. In the event that the Licensee’s use of the Software is not in accordance with this Licence Agreement, ORTOO shall be entitled to terminate the licence in respect of the Software and to terminate this Licence Agreement.####2.5 ORTOO has sole and exclusive ownership of all right, title, and interest in and to the Software, including all copyright and any other intellectual property rights therein. This Licence Agreement conveys a limited licence to use the Software pursuant to this clause 2 and shall not be construed to convey title to or ownership of the Software to the Licensee. All rights in and to the Software not expressly granted to the Licensee are reserved by ORTOO.####2.6 The Licensee warrants that it has the right to use the Salesforce Platform and any other third party software with the Software.#### ##3. SUPPORT SERVICES AND CONSULTANCY####3.1 ORTOO will make available to the Licensee an email-based helpdesk facility for the purposes of: (a) assisting the Licensee with the configuration of the Software and the integration of the Software with the Salesforce Platform; (b) assisting the Licensee with the proper use of the Software; and/or (c) determining the causes of errors and fixing errors in the Software. ####3.2 Where the submitted request for assistance is regarding an error or issue with the Software that is negatively impacting the live production environment (not a sandbox environment) ORTOO shall use reasonable endeavours to respond to issues raised through the helpdesk as follows: (a) if the Licensee purchases a Standard support package from ORTOO, then to respond within 10 Working Hours where a maximum of 10 hours are counted as Working Hours in any one day; (b) if the Licensee purchases a Premium support package from ORTOO, then to respond within 4 Working Hours; (c) if the Licensee purchases an Enterprise support package from ORTOO, then to respond within 4 Hours regardless of whether the hours are Working Hours or not (i.e. 24/7/365).####3.3 ORTOO shall have no obligation to provide support in respect of any fault or error caused by the improper use of the Software or the use of the Software otherwise than in accordance with the Documentation.####3.4 If the Licensee: (a) in the reasonable opinion of ORTOO, makes excessive use of the helpdesk and support services available under this clause 3; or (b) persistently seeks the assistance of ORTOO in relation to issues that are primarily concerned with the Salesforce Platform or some other third-party software, ORTOO may, by written notice to the Licensee, terminate the Licensee’s rights under this clause 3.####3.5 The Licensee acknowledges that from time-to-time ORTOO may require the Licensee to apply patches, updates and/or upgrades to the Software, and that these may result in changes to the appearance and/or functionality of the Software. Such patches, updates and upgrades must be applied by the Licensee promptly following receipt of a written request from ORTOO. Notwithstanding this obligation upon the Licensee, ORTOO reserves the right to itself apply such patches, updates and upgrades if the Licensee has not done so within a period of 30 days following receipt of ORTOO written request to do so.####3.6 The Licensee acknowledges that ORTOO will not be responsible for making back-ups of any Licensee data.####3.7 From time to time during the term of this Licence Agreement, ORTOO may agree to provide consultancy, training and other additional services to the Licensee. Such services will be provided subject to the payment by the Licensee of any agreed fees. Unless the parties agree otherwise in writing, the limitations and exclusions of liability in this Licence Agreement apply in relation to such services.####4. LICENCE FEE####4.1 In consideration for the licence granted to the Licensee hereunder, the Licensee shall pay ORTOO a Licence Fee for each Licence Agreement Period, using the methods of payment set out on the Salesforce Platform.####4.2 Unless clause 4.3 applies: (a) the first annual Licence Fee payment shall be due and payable on the later of the Effective Date and the first day following the end of any trial period under clause 4.8; and (b) subsequent annual Licence Fee payments shall be due and payable on each anniversary of the first payment date.####4.3 This clause 4.3 applies if ORTOO has expressly agreed in writing that payment will be monthly rather than annual. If this clause 4.3 applies: (a) the first monthly Licence Fee payment shall be due and payable on the later of the Effective Date and the first day following the end of any trial period under clause 4.8; and (b) subsequent monthly Licence Fee payments shall be due and payable on the same day of each following calendar month during the term of this Licence Agreement.####4.4 All Licence Fees and other amounts stated in and in relation to this Licence Agreement are stated exclusive of VAT and all other sales taxes, which may be payable by the Licensee to ORTOO in addition to the principal amount.####4.5 ORTOO reserves the right to vary the Licence Fee applicable to any renewal Licence Agreement Period by giving at least 30 days’ written notice of the variation to the Licensee.####4.6 Without prejudice to any of its other rights and remedies, ORTOO shall be entitled to suspend and/or terminate the Licensee’s licence and/or this Licence Agreement in the event the Licensee fails to make payment of the Licence Fee or any other amount due under this Licence Agreement.####4.7 If the Licensee has agreed in writing that this Licence Agreement will continue for a minimum period or minimum term, then if this Licence Agreement is terminated by ORTOO under clause 2.4, 4.7, 5.1 or 5.2, or by the Licensee in breach of this Licence Agreement, the Licensee shall immediately become liable to pay all Licence Fees and other amounts that would have been payable had this Licence Agreement continued to the end of the minimum period or minimum term.####4.8 If the parties have agreed that the first 30 days of the term of this Licence Agreement (or such other period as the parties may agree) shall be a trial period, then all of the provisions of this Licence Agreement shall apply during that trial period, save as follows: (a) the Licensee shall have no obligation to pay the Licence Fee in respect of the trial period; (b) either party may terminate this Licence Agreement immediately by giving written notice to the other party at any time before the end of the trial period (in which case no liability to pay the Licence Fee will arise); and (c) the Software and the Licensee’s use of the Software shall be subject to such limitations and restrictions as ORTOO shall implement from time to time.####5. TERMINATION####5.1 This Licence Agreement shall commence on the Effective Date and continue until terminated in accordance with its express terms. If either party breaches this Licence Agreement in any material respect, the other party may give written notice to the breaching party of its intent to terminate, and if such breach is not cured within 30 days after the breaching party’s receipt of such notice, this Licence Agreement shall terminate without any further notice required (but no cure period is required for any breach that cannot be cured).####5.2 Notwithstanding clause 5.1, ORTOO shall be entitled to: (a) immediately terminate this Licence Agreement upon notice; and (b) permanently prohibit the Licensee from making any use of and/or accessing the Software in the event the Licensee is, or ORTOO has reason to be believe that the Licensee is: (i) using the Software to commit a criminal act or to cause nuisance, annoyance or inconvenience to or harass others, including without limitation engaging in hacking activities; (ii) using illegal and/or unlawful means to access the Software; or (iii) doing an act or series of acts that shall or may reasonably be deemed to infringe any patents, copyrights, trade marks, design rights or any other intellectual property rights or other rights of any third parties.####5.3 Subject to Clause 5.1, the Licensee may not terminate this Licence Agreement during the Licence Agreement Period. Either party may terminate this Licence Agreement by giving at least 30 days’ written notice to the other party prior to the end of the then-current Licence Agreement Period, providing that such notice must terminate: (a) at the end of the then-current Licence Agreement Period; and (b) after the end of any minimum period or minimum term agreed between the parties. ####5.4 Upon any termination of this Licence Agreement, (a) the rights and licences granted to the Licensee under this Licence Agreement shall terminate; (b) the Licensee shall cease all use of the Software; (c) the Licensee shall expunge all copies of the Software on its PC, laptop or system; and (d) the Licensee shall, where requested, certify in writing to ORTOO its compliance with the foregoing. Clauses 1, 3, 4 (to the extent of unpaid Licence Fees), 5.2, 5.4, 6, 7, 8, 9 and 10 shall survive any termination of this Licence Agreement.####6. REPRESENTATIONS AND WARRANTIES####6.1 ORTOO warrants that: (a) it has the full power and authority to enter into this License Agreement; (b) it has the right to provide the Software to the Licensee in accordance with this License Agreement; (c) it will use reasonable care and skill to ensure that the Software will function materially in accordance with the Documentation during the term of this License Agreement, without prejudice to ORTOO’s rights to update, enhance and upgrade the Software from time to time; and (d) the Software will not contain any malicious code.####6.2 The above warranty is conditional upon the Licensee complying with the Minimum Requirements.####6.3 The warranties set forth in this clause 6 are exclusive and in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade, all of which are hereby excluded and disclaimed.####6.4 The Licensee shall procure its own internet connection to access the Salesforce Platform and/or the Software.####6.5 The Licensee acknowledges that ORTOO relies on third party services providers to make the Software available to the Licensee. Consequently, ORTOO does not warrant that the Licensee shall have uninterrupted access to the Salesforce Platform and/or use of the Software.####6.6 The Licensee hereby represents that it shall: (a) comply with the Minimum Requirements; (b) comply with all applicable local and foreign laws and regulations which may govern the use of the Software; and (c) use the Software only for lawful purposes and in accordance with the terms of this Licence Agreement.####6.7 ORTOO agrees that Licensee shall not be responsible or liable for any fees to third parties for any mandatory components packaged and delivered by ORTOO as an integral part of the Software. For the purposes of this Licence Agreement “mandatory components” are any components of the Software that are automatically used by the Software without the ability of Licensee to turn off their usage while still using the Software, and excludes any components or services called from the Software which are external to the Software.####7. LIMITATION OF LIABILITY####7.1 Nothing in this Licence Agreement will: (a) limit or exclude the liability of a party for death or personal injury resulting from negligence; (b) limit or exclude the liability of a party for fraud or fraudulent misrepresentation by that party; (c) limit any liability of a party in any way that is not permitted under applicable law; or (d) exclude any liability of a party that may not be excluded under applicable law.####7.2 The limitations and exclusions of liability set out in this clause 7 and elsewhere in this Licence Agreement: (a) are all subject to clause 7.1; and (b) govern all liabilities arising under this Licence Agreement or in relation to the subject matter of this Licence Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty.####7.3 ORTOO will not be liable to the Licensee in respect of any loss of profits, income, revenue, use, production or anticipated savings.####7.4 ORTOO will not be liable to the Licensee for any loss of business, contracts or commercial opportunities.####7.5 ORTOO will not be liable to the Licensee for any loss of or damage to goodwill or reputation.####7.6 ORTOO will not be liable to the Licensee in respect of any loss or corruption of any data, database or software.####7.7 ORTOO will not be liable to the Licensee in respect of any special, indirect or consequential loss or damage.####7.8 Neither party will be liable to the other for any losses arising out of any event or events beyond the reasonable control of the other party.####7.9 ORTOO will not be liable to the Licensee for any wasted management time or procurement of substitute products or services.####7.10 The Licensee’s sole remedy with respect to any claims arising out of this Licence Agreement shall be strictly limited either: (a) to the replacement of the Software by ORTOO; or (b) damages not exceeding the greater of: (i) USD 1,000; and (ii) the sum of all amounts paid and payable by the Licensee to ORTOO under this Licence Agreement during the period of 12 months immediately prior to the commencement of the claim.####7.11 Under no circumstances shall ORTOO be liable for any failure of the Software to perform in accordance with the Documentation, or at all, as a result of a failure by the Licensee to comply with the Minimum Requirements.####7.12 The Licensee acknowledges that whilst the Software may be used in combination with third party software and in particular with the Salesforce Platform, ORTOO bears no liability, howsoever arising, for any loss, damage or cost that arises from a failure of the Software to integrate with any such third-party software.####8. MUTUAL INDEMNITY####8.1. Indemnification by ORTOO. We will defend the Licensee against any claim, demand, suit or proceeding made or brought and finally awarded against the Licensee by a third party alleging that the use of the Software in accordance with this Licence Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Licensee”), and will indemnify the Licensee from any damages, attorney fees and costs finally awarded against the Licensee by a court of competent jurisdiction as a result of, or for amounts paid by the Licensee under a court-approved settlement of a Claim Against Licensee, provided the Licensee (a) promptly give ORTOO written notice of the Claim Against Licensee, (b) give ORTOO sole control of the defence and settlement of the Claim Against Licensee (except that ORTOO may not settle any Claim Against Licensee unless it unconditionally releases the Licensee of all liability), and (c) give ORTOO all reasonable assistance, at ORTOO's expense. If ORTOO receive information about an infringement or misappropriation claim related to the Software, ORTOO may at ORTOO's discretion and at no cost to the Licensee (i) modify the Software so that it no longer infringes or misappropriates, without breaching ORTOO's warranties under Section 6 (REPRESENTATIONS AND WARRANTIES), (ii) obtain a licence for the Licensee's continued use of the Software in accordance with this Licence Agreement, or (iii) terminate the Licensee's Licence for the Software upon 30 days’ written notice and refund the Licensee any prepaid Licence Fees covering the remainder of the term of the terminated License. The above defence and indemnification obligations do not apply to the extent a Claim Against Licensee arises from ORTOO’s use of any Content or Licensee’s breach of this Licence Agreement. The provisions in this clause 8.1 set out the Licensee’s sole remedy against ORTOO in respect of any claims arising under this clause 8.1. The indemnity in this Section 8.1 shall not apply to losses, claims or liabilities arising from Licensee’s failure to comply with applicable law, gross negligence, wilful misconduct, or claims covered by Licensee’s indemnity in Section 8.2 below.####8.2. Indemnification by the Licensee. The Licensee will defend ORTOO against any claim, demand, suit or proceeding made or brought and finally awarded against ORTOO by a third party alleging that Licensee Data, or the Licensee's use of the Software or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against ORTOO”), and will indemnify ORTOO from and against any damages, attorney fees and costs finally awarded against ORTOO by a court of competent jurisdiction as a result of, or for any amounts paid by ORTOO under a court-approved settlement of a Claim Against ORTOO , provided ORTOO (a) promptly give the Licensee written notice of the Claim Against ORTOO, (b) to the extent practicable give the Licensee sole control of the defence and settlement of the Claim Against ORTOO (except that the Licensee may not settle any Claim Against ORTOO unless it unconditionally releases ORTOO of all liability), and (c) give the Licensee all reasonable assistance, at the Licensee's expense. The indemnity in this Section 8.2 shall not apply to losses, claims or liabilities arising from ORTOO’s failure to comply with applicable law, gross negligence, wilful misconduct, or claims covered by ORTOO’s indemnity in Section 8.1 above.####8.3. Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section ####9. CONFIDENTIALITY AND DATA PROTECTION####9.1 Each party shall: (a) keep confidential and not disclose the Confidential Information of the other party to any person save as expressly permitted by this Clause 9; and (b) protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.####9.2 The Confidential Information of a party may be disclosed by the other party to that other party's officers, employees, agents, insurers and professional advisers, provided that the recipient is bound in writing or by a professional obligation to maintain the confidentiality of the Confidential Information disclosed.####9.3 The obligations set out in this Clause 9 shall not apply to: (a) Confidential Information that is publicly known (other than through a breach of an obligation of confidence); (b) Confidential Information of a party that is in possession of the other party prior to disclosure by the first party; (c) Confidential Information of a party that is received by the other party from an independent third party who has a right to disclose the relevant Confidential Information.####9.4 The obligations set out in this Clause 9 shall not apply to the extent that Confidential Information that is required to be disclosed by law, or by a governmental authority, stock exchange or regulatory body, provided that the party subject to such disclosure requirement must, where permitted by law, give to the other party prompt written notice of the disclosure requirement.####9.5 The Licensee warrants to Ortoo that it has the legal right to disclose all personal data that it does in fact disclose to Ortoo under or in connection with this Licence Agreement.####9.6 To the extent that Ortoo processes personal data disclosed by the Licensee in the course of performing the support services and consultancy services, Ortoo warrants that: (a) it will act only on instructions from the Licensee in relation to the processing of that personal data; and (b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that personal data and against loss or corruption of that personal data.#### ##10. GENERAL####10.1 The Licensee shall not assign this Licence Agreement, in whole or in part, without the prior written consent of ORTOO####10.2 The Licensee consents to the use by ORTOO of the Licensee’s name in customer lists and other publicity, including interviews, case studies, and conference discussions, provided that such publicity accurately describes the nature of the relationship between the Licensee and ORTOO, and provided that the Licensee has not requested to be excluded from such usage.####10.3 The Licensee agrees that because of the unique nature of the Software and ORTOO proprietary rights therein, a demonstrated breach of this Licence Agreement by the Licensee may irreparably harm ORTOO and monetary damages may be inadequate compensation. Therefore, the Licensee agrees that ORTOO shall be entitled to preliminary and permanent injunctive relief, as determined by any court of competent jurisdiction to enforce the provisions of this Licence Agreement.####10.4 If any provision of this Licence Agreement or the Software thereof is declared void, illegal, or unenforceable, the remainder of this Licence Agreement will be valid and enforceable to the extent permitted by applicable law. In such event, the parties agree to use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.####10.5 Any failure by any party to this Licence Agreement to enforce at any time any term or condition under this Licence Agreement will not be considered a waiver of that party’s right thereafter to enforce each and every term and condition of this Licence Agreement.####10.6 Neither party will be responsible for delays resulting from circumstances beyond the reasonable control of such party, provided that the non-performing party uses reasonable efforts to avoid or remove such causes of non-performance and continues performance hereunder with reasonable dispatch whenever such causes are removed.####10.7 Subject to clause 7.1, this Licence Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements, oral and written, made with respect to the subject matter hereof.####10.8 This Licence Agreement may be varied either: (a) by the written agreement of both parties; or (b) by ORTOO giving to the Licensee written notice of the variation, such variation to come into effect at the end of the then-current Licence Agreement Period.####10.9 This Licence Agreement governed by and construed in accordance with English law. The courts of England shall have exclusive jurisdiction over any disputes arising out of these Terms.
