General Software-as-a-Service Terms

LAST UPDATED: October 22nd, 2024

 

1. Applicability.

1. 1. a. These General Software-as-a-Service Terms (these “Terms”) govern the provision of the software-as-a-service offering (the “Services”) by Lisam Systems Ltd(“LSL”) to the party identified as “Customer” (“Customer”) on an “Order Form” executed by Customer and incorporating these Terms by reference (an “Order Form”), as of the “Effective Date” of such Order Form (the “Effective Date”). LSL and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
   2. b. The Order Form, these Terms, and any other document executed by both parties that expressly incorporates these Terms by reference (“Addenda”)(the Order Form, Terms, and Addenda are collectively referred to herein as the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms, the Order Form, and any Addenda, the following order of priority will apply: 1) Order Form, 2) Addenda, and 3) Terms.
   3. c. This Agreement prevails over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend the Agreement.

 

2. Access and Use.

1. 1. a. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, LSL hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorised Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. LSL will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorised Users will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees.
   2. b. Documentation Licence. Subject to the terms and conditions contained in this Agreement, LSL hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable licence to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services. “Documentation” means LSL’s user manuals, handbooks, and guides relating to the Services provided by LSL to Customer either electronically or in hard copy form.
   3. c. Use Restrictions. Customer will not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer will not at any time, directly or indirectly, and will not permit any Authorised Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, licence, sublicence, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   4. d. Reservation of Rights. LSL reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licences expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the LSL IP. “LSL IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorised User in connection with the foregoing.
   5. e. Suspension. Notwithstanding anything to the contrary in this Agreement, LSL may temporarily suspend Customer’s and any Authorised User’s access to any portion or all of the Services if: (i) LSL reasonably determines that (A) there is a threat or attack on any of the LSL IP; (B) Customer’s or any Authorised User’s use of the LSL IP disrupts or poses a security risk to the LSL IP or to any other customer or vendor of LSL; (C) Customer, or any Authorised User, is using the LSL IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) LSL’s provision of the Services to Customer or any Authorised User is prohibited by applicable law; (ii) any vendor of LSL has suspended or terminated LSL’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). LSL will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. LSL will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. LSL will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorised User may incur as a result of a Service Suspension.
   6. f. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, LSL may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between LSL and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by LSL. Customer acknowledges that LSL may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that LSL may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
   7. g. Mandatory Upgrade Requirement. LSL reserves the right to require Customer to transition to an updated version of the Services. LSL will notify Customer in writing at least 30 days prior to the required transition date. Upon receipt of the transition notice, Customer will promptly commence the transition to the updated version and complete the transition by the specified transition date. During the transition period, LSL will provide reasonable support and assistance to facilitate Customer’s transition to the updated version. The scope and nature of such support will be determined at LSL’s discretion. After the transition date, LSL may discontinue provision of the previous version of the Services.

 

3. Customer Responsibilities.

Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will use reasonable efforts to make all Authorised Users aware of this Agreement’s provisions as applicable to such Authorised User’s use of the Services and will cause Authorised Users to comply with such provisions.

 

4. Support.

LSL will provide reasonable assistance and ongoing support to assist Licensee and Authorised Users in accessing the Licenced software. LSL will make its personnel available by email for feedback, problem solving, or general questions between the hours of 9:00 a.m. and 5:00 p.m. (Monday – Friday) and will make reasonable efforts to acknowledge support requests within 24 business hours. Premium support services, if any, are subject to service-specific terms and conditions set forth in the Order Form.

 

5. Fees.

Customer will pay LSL the fees (“Fees”) as set forth in an Order Form without offset or deduction. Customer will make all payments hereunder in GBP £ on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting LSL’s other rights and remedies: (i) LSL may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer will reimburse LSL for all costs incurred by LSL in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, LSL may suspend Customer’s and its Authorised Users’ access to any portion or all of the Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of VAT. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on LSL’s income. IMPORTANT PRICING NOTE: The Fees will be adjusted on an annual basis, effective on the first of the year, based on the Consumer Price Index, as revised from time to time, or any direct replacement of such index (the “CPI”), or 5% annually, whichever is higher.

 

6. Confidential Information and Data Protection.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party will not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party will promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

The Customer shall at all times comply with any and all applicable laws and regulations relating to the processing of personal data and/or data protection generally.

 

7. Intellectual Property Ownership; Feedback.

1. 1. a. LSL IP. Customer acknowledges that, as between Customer and LSL, LSL owns all right, title, and interest, including all intellectual property rights, in and to the LSL IP.
   2. b. Customer Data. LSL acknowledges that, as between LSL and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to LSL a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for LSL to provide the Services to Customer.
   3. c. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to LSL by mail, email, telephone, or otherwise, suggesting or recommending changes to the LSL IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), LSL is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

 

8. Warranty Disclaimer.

The LSL IP is provided “as is” and all warranties, representations, conditions and other terms of any kind whatsoever, implied into this agreement, whether by statute or common law, or otherwise, are excluded from this agreement to the fullest extent permitted by applicable law.  The customer assumes sole responsibility for results obtained from the use of the LSL IP by the customer, and for conclusions drawn from such use. LSL makes no warranty, representation, condition or other promise  of any kind that the LSL IP, or any products or results of the use thereof, will meet customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.

 

9. Limitations of Liability.

Nothing in this Agreement excludes the liability of LSI (i) for death or personal injury caused by LSI negligence; or (ii) for fraud or fraudulent misrepresentation. Subject to the aforementioned, LSI shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses, loss or corruption of data or information, or any special, indirect or consequential loss, costs, damages, charges or expenses. LSI’s total aggregate liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, LSI’s total liability for those claims shall not exceed the single highest annual cap for those contract years. The cap is the total fees and charges actually paid in the contract year in which the breaches occurred. A contract year means a 12 month period commencing on the Effective Date or any anniversary of it. References to liability in this clause include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

 

10. Term and Termination.

1. 1. a. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the date set forth on the Order Form (the “Initial Term”). This Agreement will automatically renew for successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
   2. b. Termination. In addition to any other express termination right set forth in this Agreement: (i) LSL may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after LSL’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 6; (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. c. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the LSL IP and, without limiting Customer’s obligations under Section 6, Customer will delete, destroy, or return all copies of the LSL IP and certify in writing to the LSL that the LSL IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
   4. d. Survival. This Section 10(d) and Sections 1, 5, 6, 7, 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

 

11. Miscellaneous.

1. 1. 1. a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
      2. b. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to Customer at the email address set forth on an Order Form if to Customer, and at Legal@lisam.com if to LSL.
      3. c. Force Majeure. In no event will LSL be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond LSL’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
      4. d. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an Authorised representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
      5. e. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
      6. f. Governing Law; 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 interpreted in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
      7. g. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of LSL. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
      8. h. Export Regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export licence or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
      9. i. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
      10. j. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.