Infomill Gas PartsArena Agreement

Between

Infomill Limited, Pentagon House, Sir Frank Whittle Road, Derby, DE21 4XA - Hereinafter “Infomill”

and

Individual or Organisation purchasing Gas PartsArena product(s). Hereinafter “Customer”

IT IS AGREED: -

Infomill has agreed to supply to Customer the Software and the Services detailed below and Customer accepts from Infomill a licence to use the Software and the supply of the Services and agrees to pay Infomill for the same, all on the terms and conditions of this Agreement. The “Agreement” shall mean this agreement and the schedule attached (Terms and Conditions). The Customer confirms that it has read and accepts all the terms of the Agreement.

In this Agreement (except where the context otherwise requires) the following expressions shall have the following meanings:

“Software”:

the computer software programs, associated database structures, files and electronic documentation to be licensed to Customer by Infomill under the terms of this Agreement as specified below and shall, unless the context otherwise requires, include a reference to any part of such software or a copy of such software:

PartsArena licences accessing the Infomill Gas PartsArena database;

“Services”:

means any or all of the following services to be provided by Infomill to Customer pursuant to the terms of this Agreement:

• Provision of designated Gas PartsArena product on an annual basis and

• Customer will be allowed to access and use Software in accordance with the terms of this Agreement;

“Charges”

the number of licences at the stated price licence per year for Gas PartsArena product type;

“GAS PartsArena database”

Technical information provided by manufacturers and suppliers of appliances in support of their products:

The Customer accepts the Intellectual Property Rights of these manufacturers and suppliers as they relate to their supplied data within the published database which are protected by international laws;

“Payment Terms”

Charges shall be due and payable annually in advance. The first payment is due on acceptance of this Agreement;

“Start Date”

the date of receipt of payment by Infomill;

“Term”:

the term of this Agreement is 3 years, subject always to this Agreement being terminated earlier in accordance with its terms (eg on account of breach). This Agreement will commence on the date of acceptance by the Customer;

“Exclusions”:

The following items are specifically excluded from this Agreement and will not be provided or supported by Infomill:

• training and familiarisation for end users of the Software

• hardware, operating system, communication services or other infrastructure and application items used in conjunction with Gas PartsArena

• maintenance contracts other than support provided for Gas PartsArena stated below

• Helpdesk support outside of office hours (09h00 to 17h00 Monday to Friday U.K. time excluding U.K. statutory and public holidays).

In the event that the Customer encounters any problems using the Services or Gas PartsArena Products the Customer will:

• nominate one person within Customer (the “Co-ordinator”) to field and log support issues from Software users and collate all such problems;

• undertake basic network, hardware and service checks to diagnose and resolve the problem; and

• if any such problem cannot be resolved by the above action, the Co-ordinator will contact Infomill helpdesk via email during the hours 09h00 to 17h00 Monday to Friday U.K. time excluding U.K. statutory and public holidays.

Support for enquiries regarding the current and one preceding version of the Software will be provided on-line. If the Customer contacts Infomill regarding problems that are due to network, hardware or non-Gas PartsArena issues Infomill shall be entitled to charge the Customer for all time taken in handling or dealing with any such matter at Infomill’s then current daily rates.

The Schedule (Terms and Conditions)

1. Definitions

In this Agreement (except where the context otherwise requires):

• “DPA” - means the Data Protection Act 1998

• "Intellectual Property Rights” - means patents, trademarks, service marks, design rights (whether registerable or not), applications for any of the foregoing, copyright and trade or business names;

• ”Operating Environment” - means the Infomill approved devices the list being available upon request;

• ”Termination Fee” - means the payment of the remainder of the Charges due to Infomill pursuant to this Agreement if this Agreement had continued in force for the full term of 3 years; and ”User Documentation” - means the written basic user guide provided by Infomill to the Customer with the Software whether in hard copy or electronic format.

• “System” – means Infomill’s Gas PartsArena product supplied in one or more formats and media.

2. Grant of Rights and Restrictions on Use

2.1 Infomill warrants that it has the authority to grant the licences granted hereunder.

2.2 On the Start Date Infomill will grant to the Customer for the duration of the Term: (i) a non-exclusive and non-transferable licence to use the agreed number of Software licences and the User Documentation; and (ii) access to the System.

2.3 Customer may use the Software and the User Documentation in the manner promoted and sold by Infomill and shall not use or attempt to use the Software or the User Documentation to provide a data processing service to any third party by way of trade or otherwise.

2.4 Customer shall not make any modification, addition or enhancement to the Software, Services or GAS PartsArena Database and Customer undertakes not to disassemble, decompile or otherwise interfere with the same or allow access to it to any third parties except as expressly permitted by law.

2.5 Customer shall not make copies of the Software except as expressly permitted by law.

2.6 Customer agrees to use the Software only for the number of users for which it has purchased licences.

2.7 Infomill reserves to itself all other rights in and to the Software and the User Documentation not expressly granted by this Agreement.

3. Services

3.1 Infomill shall provide the Services with effect from the Start Date in accordance with the terms of this Agreement.

3.2 It is a fundamental condition of this Agreement that Customer only accesses the System and uses the Services from the Operating Environment.

3.3 Infomill may from time to time produce service packs that contain bug fixes and corrections. Such service packs will be supplied to the Customer without additional charge for installation by the Customer.

3.4 Time shall not be of the essence in this Agreement.

4. Costs and Payment Terms

4.1 Customer shall pay to Infomill the Charges in accordance with the Payment Terms. Customer shall pay to Infomill all charges otherwise due under this Agreement in accordance with this clause. Where applicable VAT and any other taxes, duties or levies shall be paid additionally at the then prevailing rate.

4.2 Customer shall pay all invoices within 30 days of the invoice date and payment must in any event be received by Infomill in advance of the next period of service and notwithstanding any other provision in this Agreement all payments payable to Infomill under this Agreement shall become due immediately upon termination of this Agreement, howsoever arising.

4.3 Customer shall make all payments due under this Agreement without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless Customer has a valid court order requiring an amount equal to such deduction to be paid by Infomill to Customer.

4.4 Without prejudice to its right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and to any other rights of Infomill, if Customer fails to pay any sums due to Infomill on time or at all notwithstanding delivery of a written reminder to Customer, Infomill shall be entitled to:

4.4.1 reclaim from the Customer all costs and expenses (including legal costs) incurred in the collection of overdue amounts from the Customer; and/or

4.4.2 suspend the licence of the Software and/or the Services until such time as all payments due including all interest accrued and any costs incurred have been paid in full.

4.5 The terms of this Agreement shall take precedence over any terms and conditions specified in any purchase orders issued by the Customer unless agreed in writing by both parties.

4.6 Upon termination of this Agreement for any reason (other than the Customer’s termination of this Agreement on account of a material breach of this Agreement by Infomill) the Customer agrees to pay to Infomill the Termination Fee.

4.7 This clause shall survive termination of this Agreement.

6. Warranties and Representations

6.1 Infomill warrants that the Software, when used in accordance with the User Documentation, will perform substantially in accordance with the product description supplied as part of the User Documentation. Infomill specifically does not warrant that the function or facilities of the Software will meet Customer's business needs or other requirements or that operation of the Software will be uninterrupted or error free.

6.2 Customer acknowledges that the Software has not been prepared to meet Customer's individual requirements and that it is Customer's responsibility to ensure that the facilities and functions described in the User Documentation meet Customer's requirements.

6.3 Infomill shall not be liable for any failure of the Software to provide any facility or function not described in the User Documentation or for any failure of the Software if alterations to the Software have been made by any person other than Infomill.

6.4 Customer shall notify Infomill in writing and provide documented examples of any defects or errors in the Software. Infomill may correct or replace at Infomill's option and expense within a reasonable period of time any part of the Software which is demonstrated to fail to perform in accordance with the warranty given in Clause 6.1.

6.5 Customer's sole and exclusive remedy under the warranty given in clause 6.1 shall be limited to the correction or replacement of the failed Software in whole or in part or, if Infomill is unable to rectify the reported defect or error by correction or replacement of the Software, to a refund of the Charges paid under this Agreement in whole or in part as appropriate.

6.6 Infomill will provide the Services using reasonable skill and care. Infomill provides no further warranty in respect of the Services.

6.7 The Customer represents and warrants that:

6.7.1 the provision of the Customer Data by the Customer and Infomill’s receipt thereof shall not infringe any Intellectual Property Rights of any third party;

6.7.2 the Customer shall discharge its obligations under this Agreement with reasonable skill and care and in accordance with its own internal procedures.

6.8 This Agreement and any specific terms and/or information referred to in it constitute the entire Agreement between the parties as to its subject matter and supersede all previous communications and representations, both written and oral in relation to the subject matter.

6.9 Each of the parties acknowledges and agrees that in entering into this Agreement and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement. The only remedy available for breach of warranty shall be for breach of contract under the terms of this Agreement. Nothing in this clause shall, however, operate to limit or exclude any liability for fraud.

7 Liability

7.1 Subject to clause 6, the following provisions set out the entire liability of Infomill (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of:

7.1.1 any breach of this Agreement; and

7.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.

7.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from this Agreement.

7.3 Nothing in this Agreement excludes or limits the liability of Infomill for death or personal injury caused by its negligence or fraudulent misrepresentation

CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO CLAUSE 7.4

7.4 Subject to clause 7.3, the liability of Infomill to Customer for direct loss or damage whether in contract, tort (including negligence), misrepresentation or otherwise arising out of or in connection with its performance or its total or partial failure to perform in accordance with the terms of this Agreement in respect of the Software and Services shall be limited to the refund of the Charges that have been paid by Customer to Infomill under this Agreement.

7.5 Infomill shall not in any circumstances be liable whether in contract, tort (including negligence) or otherwise for any incidental, special, consequential or indirect loss or damage howsoever arising and of whatsoever nature including but not limited to loss of profit, loss of contracts, loss of business opportunities, loss of revenue, loss of data, loss of operation time, loss of operational effectiveness, loss of anticipated savings or loss of use of any equipment or process suffered or incurred directly or indirectly by Customer in connection with or arising out of the use, furnishing or functioning of the Software or the provision of the Services.

7.6 Infomill shall not in any circumstances be liable for any failure or fault in the Software or Services due either wholly or partly to network issues, hardware fault(s) or fault(s) or failure of any equipment or services provided by a third party.

7.7 The Customer will indemnify Infomill in respect of any claim for loss, damage or injury of any person or property occasioned by or arising from the Customer’s possession, operation, use or modification of the Software and/or the User Documentation which is not in accordance with the terms of this Agreement.

7.8 The Customer is solely responsible for placing, securing and operating the Software and Services in a manner that is safe and complies with any relevant health and safety or other legislation. It is an offence to cause or permit the use of a hand held terminal by a person while driving and neither the Software nor Services should therefore be operated by users while driving vehicles.

The Customer warrants to Infomill that it will give all appropriate instruction to its employees and any other users of the Software and Services to ensure that all appropriate legislation is complied with. Subject to clause 7.3, Infomill will not in any circumstances be liable, whether in contract, tort or otherwise, for any use of the Software or Services (or any part of it) by the Customer, its employees or other users:

7.8.1 in contravention of any relevant legislation; or

7.8.2 in a manner that may cause accidents or damage.

7.9 The Customer agrees: (i) to notify Infomill of any actual or potential third party claims of which it becomes aware regarding the Software infringing any third party copyright as soon as practicable; and (ii) promptly on request by Infomill to pass conduct and control of the defence of any such claim to Infomill.

8. Confidentiality and Intellectual Property

8.1 The Customer hereby acknowledges that the Software contains confidential information of Infomill or of third parties. The Customer undertakes to keep the Software confidential and shall not divulge the same to any third party without the prior written consent of Infomill.

8.2 Infomill and the Customer shall keep confidential the contents of this Agreement and all information of the other party designated as confidential and obtained under or in connection with this Agreement and shall not divulge the same to any third party without the prior written consent of the disclosing party.

8.3 Infomill and the Customer may divulge confidential information of the other party only to those employees, agents or subcontractors bound under equivalent conditions of confidence who are directly involved in the supply or use of the Software or the Services, and shall ensure that such persons are aware of and undertake to comply with these obligations of confidentiality.

8.4 The provisions of this clause shall not apply to any information which:

8.4.1 is or becomes public knowledge otherwise than through the default or negligence of the receiving party;

8.4.2 the receiving party can prove was in the possession of the receiving party without restriction before the date of receipt from the disclosing party;

8.4.3 is obtained from a third party who is lawfully authorised to disclose the same; and/or

8.4.4 and to the extent only that such information is required to be disclosed by law or a regulatory authority.

8.5 The Customer agrees that it will not at any time re-create or attempt to re-create the Software.

8.6 On termination of this Agreement for any reason Customer undertakes immediately to cease to use the Software and to delete, destroy or otherwise make permanently unusable the Software and all whole and partial copies of Software made by Customer or in the control of the Customer.

8.7 The obligations of both parties set out in this Clause 8 shall continue in force notwithstanding the termination of this Agreement for any reason whatsoever.

9. Governing Law and Jurisdiction:

This Agreement shall be governed by the laws of England and each party agrees to submit to the non-exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with this Agreement.