RECITALS

A. The Parties wish to enter into a license and services arrangement in accordance with the terms contained in this Licence and Maintenance Services Agreement (the “Agreement”).

B.This Agreement includes all Work Assignments agreed between the Parties from time to time. Unless otherwise defined, all capitalised terms shall have the meaning set out in this Agreement.

General Terms and Conditions

1. Structure of this Agreement

1.1

This Agreement describes the Software Products and Services that PMO shall provide to the Merchant

2.2

Should any conflict arise between any Schedule, Work Assignment and/or these General Terms and Conditions, the order of precedence shall be that the provisions of a Schedule shall prevail over the General Terms and Conditions, and each shall prevail over the Work Assignment in question, unless a provision in a Work Assignment expressly indicates that it will take precedence over a referenced Clause in the General Terms andConditions and/or a Schedule.

2. Software Products Licenses

2.1

License Provisions

The Software Products are provided subject to and in accordance with this Agreement including Schedule 2 (License). PMO reserves all rights not expressly granted to the Merchant under this Agreement.

2.2

IPR Ownership

2.2.1

Each Party owns, and shall continue to own, its respective Background IP.

2.2.2

Ownership of the copyright and any other Intellectual Property Rights of whatever nature in the Merchant’s data shall be and shall remain vested in the Merchant. All data collected by the Merchant shall be the responsibility of the Merchant alone, and PMO shall have no liability for any collection, processing or other dealing by the Merchant with such data.

2.2.3

The Merchant grants PMO a limited, non-exclusive, royalty-free license to use any Merchant Intellectual Property Rights as necessary for PMO to comply with its obligations under this Agreement (but solely and exclusively for such purpose).

2.2.4

PMOacknowledges that the copyright, trade mark and other Intellectual PropertyRights in any software module or program which functions outside of butinteracts with the Software Products, or software which has not been suppliedby PMO and which is or has been created by the Merchantor on the Merchant’s behalf, are the Merchant’s exclusive property.

2.2.5

Ownership, the copyright and any other Intellectual Property Rights of whatever nature in the Software Products, Software Work Product, Software Products Documentation and any Derivative Works shall be and shall remain vested in PMO or (as applicable) in PMO.

2.2.6

All copies of the Software Products; Software Work Product; Derivative Works; Software Products Documentation; including translations, compilations, partial copies within modifications and updated works (whether made by the Merchant or PMO) shall be PMO’s sole and exclusive property.

2.2.7

The Merchant assigns without reservation, to PMO (or as PMO shall otherwise direct) all Intellectual Property Rights, ownership, title and interest with respect to any modification or improvement to, or Derivative Work of, the Software Products and Software Work Product created by or on behalf of the Merchant.

2.2.8

The Merchant shall, at its own expense, do all such acts as PMO may reasonably require to ensure that all Intellectual Property Rights in the PMO Background IP, the Software Products, Derivative Works, Software Products Documentation and Software Work Product shall vest in PMO or as PMO otherwise directs.

2.2.9

The Merchant waives all moral rights in any copyright arising from the limited use or any modification of the Software Products, Derivative Works, Software Products Documentation and Software Work Product and any other PMO Confidential Information.

3. Maintenance and Support Services and Additional Services

3.1

Maintenance and Support Services are specified in Schedule 3. Additional Services shall be specified in one or more Work Assignments.

3.2

Work Assignments

Each Work Assignment shall be based on PMO’s then standard form, as may be amended and agreed between the Parties.

3.3

Time and Materials Basis

If Additional Services are provided on a Time and Materials Basis, the Merchant shall bear the risk of cost overruns and/or delays in work performed.

3.4

Estimates

If PMO provides the Merchant with an estimate of the cost and/or timeframe for specific Additional Services, the estimate shall be made in good faith based on the information known to PMO at the time of the estimate in question. However, PMO does not warrant that estimates shall be, or that they shall remain accurate. Except where specifically stated otherwise, estimates are not intended as price or performance guarantees and PMO shall not be bound by any such estimate.

3.5

Expenses

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4. Confidentiality

4.1

The Receiving Party shall:

4.1.1

treat as confidential, hold in trust and keep secret the Confidential Information of the Disclosing Party;

4.1.2

take sufficient precautions to maintain the confidentiality of the Disclosing Party’s Confidential Information and in particular Receiving Party shall not disclose the Confidential Information other than to:

4.1.2.1

Receiving Party’s employees and authorised agents who have a legitimate need to know for the Authorised Purpose; and

4.1.2.2

Receiving Party’s auditors, governmental authorities and regulatory authorities responsible for examining Receiving Party’s affairs;

4.1.3

safeguard all copies of the Disclosing Party’s Confidential Information against any unauthorised disclosure;

4.1.4

not allow any copies of the Disclosing Party’s Confidential Information to leave Receiving Party’s possession and control, and manage all access to the Disclosing Party’s Confidential Information; and

4.1.5

take all reasonable steps to ensure that the provisions of this Clause 4 are not violated by any employee or agent of the Receiving Party.

4.2

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4.2.1

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4.2.2

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4.2.3

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4.3

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

4.4

The mechanism and policies for calculating expenses shall be specified in the applicable Work Assignment.

5. Warranty

5.1

PMO warrants that:

5.1.1

PMO has the right to license the Software Products during the License Term;

5.1.2

the Software Products shall, for the duration of the Software Warranty Period conform in all material respects with the Software Products Documentation; and

5.1.3

Services shall be performed with reasonable care and skill. The Merchant shall not (unless otherwise permitted under Applicable Law or Regulatory Requirements) claim a breach of this warranty for any Services after the expiry of sixty (60) days from the date on which the Services are performed, or as otherwise specified in the applicable Work Assignment.

5.2

Any additional warranty applicable to a Software Work Product shall be specified in the applicable Work Assignment.

5.3

If within the Software Warranty Period, the Merchant notifies PMO that the Software Products fail to conform in any material respect with the Software Products Documentation (such failure not being caused by the Merchant, PMO shall, at PMO’s option, do one of the following:

5.3.1

within twenty-one (21) Business Days after receiving notice of the failure, remedy the non-conformance such that the Software Products then conform in all material respects with the Software Products Documentation, subject to the Merchant providing all information that may be reasonably necessary to assist PMO in resolving such failure; or

5.3.2

provide replacement Software Products that conform in all material respects with the Software Products Documentation.

5.4

PMO shall use reasonable efforts to test the Software Products and any Software Work Product for detectable Viruses prior to delivery to the Merchant using virus-testing software then generally available to the applicable sector of the software industry.

5.5

The Merchant acknowledges that it has been advised, is aware of and understands that the Software Products continue to be developed, and may be revised, updated or corrected at any time. The Merchant acknowledges that it has taken this fact into consideration in taking the decision to utilise the Software Products.

5.6

PMO does not warrant uninterrupted or error-free operation or performance of any Software Product, Software Work Product(s), or Software Product Documentation

5.7

To the extent permitted by applicable law, the warranties set forth in Clauses 5.1 and 5.8 are in lieu of all other warranties, express or implied, which might otherwise have effect under this Agreement or under any collateral contract (whether by statute, common law or otherwise) or by virtue of any applicable law, including but not limited to the implied warranties of merchantability, fitness and fitness for a particular purpose

5.8

Merchant warrants that it has full capacity and authority and all necessary consents to enter into and perform its obligations under this Agreement and that this Agreement is executed by the duly authorised representatives of the Merchant and represents a binding commitment on the Merchant.

6. Intellectual Property Infringement Claims

6.1

Subject to Clause 6.2, PMO shall defend, indemnify and hold the Merchant harmless from all damages, liabilities, reasonable costs and reasonable expenses finally awarded by a court of competent jurisdiction insofar as directly resulting from a claim that use of the Software Products, Software Products Documentation and/or Software Work Product infringes any third party copyright, trade secret right or patents (if such patents are issued in the United Kingdom as of the Effective Date).

6.2

As a condition to PMO’s indemnification obligations under Clause 6.1, the Merchant shall provide PMO with a prompt written notice of the claim and grant PMO exclusive control of the defence, settlement, adjustment or compromise of any such claim. PMO shall bear the reasonable expense of such legal counsel employed by the Merchant if the engagement of such legal counsel is necessary only because PMO does not assume control of the Merchant’s defence and cannot for any other reason supply the Merchant with legal counsel. The Merchant shall have no authority to settle any claim on PMO’s behalf.

6.3

If the development, use or distribution of the Software Products, Software Products Documentation and/or Software Work Product(s) are enjoined or become the subject of a claim of infringement, PMO shall use reasonable efforts at PMO’s option and cost to either:

6.3.1

obtain the necessary licenses;

6.3.2

make such replacements or modifications as are necessary to continue the development, use, or distribution of the Software Products, Software Products Documentation and/or Software Work Product(s) without infringement; or

6.3.3

provide the Merchant with functionally equivalent substitute Software Products, Software Products Documentation and/or Software Work Product provided, however, that if none of those options are commercially reasonable, PMO may terminate this Agreement and pay the Merchant an amount equal to a pro rata amount of the monthly fee paid to PMO for the infringing Software Products, Software Products Documentation and/or Software Work Product(s),) in full satisfaction of PMO’s obligations with respect to the infringement. Such a termination right shall be considered as a last resort and shall be only considered after all other options available to PMO have been exhausted by PMO. Both Parties shall agree that it is commercially reasonable to terminate the Agreement prior to exercising the termination right specified in this Clause.

6.4

PMO shall have no obligation under Clauses 6.1, 6.2 and/or 6.3 to the extent that any claim of infringement or misappropriation results from:

6.4.1

the Merchant’s use of the Software Products, Software Products Documentation, Derivative Works and/or Software Work Product other than as permitted under this Agreement, if the infringement would not have occurred but for such use;

6.4.2

the Merchant’s use of the Software Products, Software Products Documentation, Derivative Works and/or Software Work Product in combination with the Merchant’s and/or a third party’s software or technology if the infringement would not have occurred but for such combination;

6.4.3

use or incorporation into the Software Products, Software Products Documentation, Derivative Works and/or Software Work Product of any specification, technique, or design furnished by the Merchant (or a third party under contract with Merchant or under the control of Merchant), if the infringement would not have occurred but for such use or incorporation;

6.4.4

any claim based on the Merchant’s use of the Software Products, Software Products Documentation and/or Software Work Product, after PMO has informed the Merchant of modifications or changes which are required to avoid such claim and offered to implement those modifications or changes without charge, if such claim would have been avoided by implementation of such changes; or

6.4.5

PMO’s compliance with specifications or instructions provided by the Merchant.

6.5

Notwithstanding the general exclusion of consequential and indirect damages in Clause 7, PMO shall also not be liable for enhanced or punitive damages as regards any claim under or in connection with this Clause 6 which could have been avoided or reduced by actions within the Merchant’s control.

6.6

The foregoing provisions of this Clause 6 state PMO’s entire liability and obligations and the Merchant’s (and where applicable the Merchant’s clients’) sole and exclusive remedy with respect to any violation or infringement of any proprietary rights (including but not limited to patents and copyrights) by the Software Product, Software Product Documentation, Derivative Works and/or Software Work Product or any part of them.

7. Limitation of Liability

7.1

Nothing in this Agreement shall exclude or limit the liability of PMO for:

7.1.1

the indemnity that PMO provides for the infringement of Third Party Intellectual Property Rights as set out in Clause 6 of these General Terms and Conditions;

7.1.2

claims for compensation for personal injury or death arising from PMO’s acts or omissions in the performance of Services;

7.1.3

claims for fraud or fraudulent misrepresentation by PMO;

7.1.4

damage to real property and tangible personal property arising from PMO or PMO’s Personnel’s negligent acts or omissions; and

7.1.5

for Gross Negligence and/or Wilful Misconduct if and only if such claims cannot be excluded or limited under Applicable Law or Regulatory Requirements;

7.2

Subject to the other provisions of this Clause 7, the liability of PMO for any claim by the Merchant against PMO relating to any other service type that PMO provides as Additional Services pursuant to a Work Assignment, shall not exceed the amount paid to PMO by the Merchant as the Charges for the applicable Additional Services in the twelve (12) month period immediately preceding the date of claim.

7.3

Subject at all times to the other provisions of this Clause 7, the liability of PMO for any claim by the Merchant against PMO relating to this Agreement or any transaction, product or service made under or pursuant to this Agreement (except explicitly related to any Work Assignment), whether in contract (including under any indemnity), tort (including negligence), statute, equity, strict liability, warranty or otherwise shall not exceed £1,000 for all claims arising out of or related to any:-

7.3.1

breach of PMO’s confidentiality obligations set out in Clause 4 (Confidentiality) of this Agreement; or

7.3.2

loss or damage to the Merchant’s records or Merchant Personal Information.

7.4

Subject to the other provisions of this Clause 7, the liability of PMO for any claim by the Merchant against PMO relating to this Agreement or any transaction, product or service made under or pursuant to this Agreement (except explicitly related to any Work Assignment), whether in contract (including under any indemnity), tort (including negligence), statute, equity, strict liability, warranty or otherwise shall not exceed the amount of the General Cap for all other claims.

7.5

“General Cap” means an aggregate sum equivalent to 100% of the total charges paid or payable by the Merchant under this Agreement in the twelve-month period preceding the date of the claim.

7.6

Except as provided in Clauses 7.1. to 7.6 inclusive (if mandatory under Applicable Law) under no circumstances shall PMO be liable for:

7.6.1

third-party claims against the Merchant for loss ordamages, or any other relief;

7.6.2

consequential, indirect, special, punitive or incidental damages;

7.6.3

loss of profits;

7.6.4

loss of contracts, loss of revenue, delay damages, loss of goodwill;

7.6.5

loss of anticipated savings; and

7.6.6

enhanced or punitive damages as regards any claim under or in connection with Clause 7 which could have been avoided or reduced by actions within the Merchant’s control,

even when, in each or any of the above cases, advised of their possibility.

7.7

Each Party shall use reasonable endeavours to mitigate any losses which it may suffer under or in connection with this Agreement, including under any indemnity.

7.8

The Merchant is responsible for ensuring that PMO’s services are properly and accurately presented and sold by the Merchant to the Merchant’s customers in accordance with all local laws and regulations, and shall hold PMO harmless in respect of any claim by any customer against PMO arising from any breach of your obligations in this respect

7.9

For the avoidance of doubt, the limitations, and exclusions of liability in this Clause 7 do not apply in respect of a Party’s acts or omissions to the extent a resulting liability cannot be excluded or limited by applicable law.

8. Payments and Disputed Payments

8.1

As per Shopify’s billing process, the Merchant is currently billed once per month by Shopify for its use of Shopify and other Shopify apps.

8.2

This monthly billing date is the same date that the Merchant will be charged for its use of PMO. Shopify will automatically collect the relevant charges from the Merchant. Shopify then automatically remits the funds to PMO. The cost of PMO is laid out in Schedule 3.

8.3

If the Merchant disputes any payments, both parties agree to work in good faith to resolve the issue, ensuring that the correct charges are made to the Merchant as described in Schedule 3.

9. Taxes

9.1

All charges, fees and payments specified in this Agreement are exclusive of applicable taxes and customs duties and/or fees payable under this Agreement, all of which shall be paid by the Merchant in accordance with Applicable Law. Other than that, each Party shall bear its own taxes.

9.2

If the Merchant is required by Applicable Law or Regulatory Requirements to withhold tax from any sum payable to PMO then PMO shall be entitled to issue an invoice for the amount so withheld, grossed-up to the extent necessary to ensure that the amount received by PMO is the same sum as would have been payable had no such withholding or deduction been made.

10. Audit Rights

10.1

The Merchant grants PMO or an independent third party nominated by PMO, at PMO’s cost, the right (with reasonable notice to the Merchant, and subject to the Merchant’s reasonable security requirements) to enter the Installation Site and/or Back-up Site during Normal Business Hours (or such other hours as may be mutually agreed) escorted by the Merchant to carry out Standard Audits.

11. Assignment

11.1

The license granted under this Agreement is personal to the Merchant and requires PMO’s prior written consent to any proposed assignment or novation, such consent not to be unreasonably withheld or delayed. Any attempted assignment or novation in contravention of this Clause 11 shall be null and void.

11.2

Immediately following any assignment or novation by Merchant in accordance with this Clause 12, the Merchant’s rights shall terminate and the Merchant shall transfer all copies of the Software Products to the transferee subject to procuring that the transferee agrees in writing to be bound by the provisions of this Agreement as if the transferee were a Party to this Agreement.

12. Force Majeure

12.1

If either Party is unable to perform, or is delayed in performing, its obligations under this Agreement due to circumstances beyond its reasonable control (other than obligations for the payment of money or the maintenance of confidentiality) such obligations shall be suspended so long as those circumstances persist, provided that such Party notifies the other promptly of both the delay and its cause(s), and uses all commercially reasonable efforts to overcome such inability to perform (or delay in performing).

12.2

Either Party shall not be in breach of any of its obligations under the Agreement if such breach is the result of:

12.2.1

the other Party’s failure to comply with its obligations under this Agreement;

12.2.1

any acts or omissions of a Party, its Affiliates, or third parties under the control of that Party that are not otherwise expressly permitted under this Agreement; and

12.2.3

a Force Majeure Event meaning any event or circumstance beyond a Party’s reasonable control including natural disasters, health crises, riots, war, terrorism, civil disorder, court order, acts or regulations of governmental bodies, labour disputes, or failures or fluctuations in electrical power or telecommunications services, and which it could not have prevented by reasonable precautions.

12.2.4

In the cases of Clauses 12.2.1 to 12.2.3, PMO will use reasonable commercial efforts to perform the Services in such circumstances, and PMO is entitled to additional Charges and an extension of time, that is reasonable in the circumstances, for performance of PMO’s obligations.

12.3

If a Force Majeure Event continues for more than 4 (four) weeks and a Party’s ability to perform its obligations under the Agreement is substantially affected by the Force Majeure Event, then, provided that a suitable workaround cannot be found, either Party may terminate that Agreement for its convenience by giving written notice to the other Party. Such termination will take effect as of the date specified in the notice of termination, which must be a date after the date of the notice.

12.4

If the Agreement is terminated because of a termination notice issued by either Party under clause 12.3, Merchant shall not be entitled to any refund of any monies previously paid as set out in the Agreement.

13. Term and Termination

13.1

This Agreement shall continue for the Term.

13.2

Either Party may terminate this Agreement if the other Party:

13.2.1

breaches a material obligation and fails to cure that breach within thirty (30) days after receipt of a written notice describing the breach in reasonable detail; or

13.2.2

has a receiver, liquidator or administrator appointed, ceases to trade or has an order made against it, passes a resolution for winding-up, or makes any composition or arrangement with its creditors generally.

13.3

Notwithstanding Clause 13.2.1, PMO may terminate any Work Assignment, Maintenance and Support Schedule and/or License Schedule upon thirty (30) days’ written notice if the Merchant defaults in its payment obligations under this Agreement.

13.4

Either Party may terminate this Agreement for convenience by providing the other Party with no less than 1 days’ prior written notice.

13.5

Upon termination of this Agreement or of a License Schedule under this Agreement, the Merchant shall immediately discontinue use of the applicable Software Products, Software Work Product, Derivative Works and Software Products Documentation, and related materials (and any copies thereof) in the Merchant’s possession.

13.6

Any provision of this Agreement that expressly or by implication is intended to continue in force shall survive termination or expiry of this Agreement, including, without limitation, Clauses 2.2, 4, 6, 7, 14, 16, 17 and this Clause 13.6.

14. Dispute Resolution

14.1

Subject to Clause 14.2, if any dispute arises related to this Agreement or any transaction or matter governed by this Agreement, either Party may prepare and deliver to the other Party memoranda stating the issues in dispute and their positions (“Dispute Notice”). Authorised executives of both Parties shall meet within 10 Business Days of receipt of the Dispute Notice and attempt in good faith to resolve the dispute before resorting to court or arbitration. The meeting shall normally be held in the offices of the Party requested to attend the meeting.

14.2

Notwithstanding Clause 14.1, either Party may apply to a court of competent jurisdiction for review of the award of arbitration, a temporary restraining order, a preliminary injunction or other equitable relief to preserve the status quo, or as regards disputes relating to breach of the confidentiality, non-disclosure or trade secret provisions of this Agreement.

14.3

If the Parties are unable to resolve the dispute by negotiation as specified at Clause 14.1 within twenty (20) days of commencement of such procedure, or if either Party fails to participate in such procedure, then either Party may enforce this Agreement under Applicable Law so long as such Party provides at least ten (10) days’ written notice to the other Party.

15. Miscellaneous

15.1

Independent Agents: All PMO agents performing Services shall be under PMO’s exclusive direction and control and shall not be considered employees of the Merchant. PMO shall be an independent contractor as to the Merchant and shall have authority to control and direct the performance of all such Services.

15.2

Counterparts: The signatures of the Parties need not appear on the same copy of this Agreement or any Work Assignment or amendment to this Agreement, so long as each Party duly executes (including electronically) one copy of this Agreement (or, as applicable, Work Assignment or amendment) and the copies contain the same provisions.

15.3

Notices: Except as otherwise expressly provided in this Agreement, any notice required under this Agreement shall be sent by email or phone call to the relevant nominated person of the other party from time to time.

15.4

Headings: The headings in this Agreement shall not affect the construction or interpretation of this Agreement.

15.5

Severability: If any provision of this Agreement is unenforceable, all other provisions shall nevertheless continue in full force and effect, and to the extent permitted under Applicable Law, the Parties shall restructure that provision to reflect the original intent of the Parties.

15.6

No Waiver: Waiver of any right, power, authority, discretion or remedy arising under this Agreement shall be in writing and duly executed by the Party granting the waiver. A failure or delay in the exercise, or partial exercise, of any such right, power, authority, discretion or remedy shall not constitute (nor be deemed to constitute) a waiver thereof.

15.7

Exclusion of Third Party Rights: No person who is not a Party to this Agreement shall have any right or benefit under it.

16. Governing Law

16.1

The laws of England and Wales shall govern this Agreement. Subject to the dispute resolution procedure at Clause 14, this Agreement shall be subject to the exclusive jurisdiction of the English Courts for any dispute arising under or in relation to this Agreement.

17. Entire Agreement and Amendment

17.1

This Agreement (including any Schedules, Work Assignments, and written amendments expressly made a part of this Agreement), states the entire understanding between the Parties concerning the subject matter of this Agreement, and supersedes all oral and written communications that are not written amendments expressly made a part of this Agreement.

17.2

In executing this Agreement, the Merchant has not relied on:

17.2.1

any previous statement or representation made in respect of the Agreement or related subject matter; or

17.2.3

the availability of any future enhancement, update, upgrade, modification or revision to the Software Products or any future product..

17.3

Except in respect of any fraudulent misrepresentations made by a Party, neither Party has relied on any representations, writings, negotiations, or understandings, whether express or implied (other than as set out in this Agreement).

17.4

No amendment to this Agreement shall be effective unless it is in writing and duly executed by authorised signatories of each Party. Any terms and conditions attached to or incorporated in any purchase order shall be deemed to be inapplicable and shall have no force or effect.

DEFINITIONS

"Additional Services"

services provided by PMO to the Merchant pursuant to a Work Assignment (and therefore specifically excluding Maintenance and Support Services).

"Agreement"

this License and Maintenance Services Agreement including the General Terms and Conditions, all Schedules and all Work Assignments (including all amendments that are made from time to time).

"Applicable Law"

any of the following to the extent that they apply to the referenced Party in the supply of the Software Products and/or the Services by PMO or the receipt and use of the same by the Merchant (as applicable):

any statute or regulation, in force from time to time;
any court order, judgment or decree binding on such Party;
any applicable direction, statement of practice, policy, rule or order that is set out by a regulatory authority.

"Authorised Purpose"

processing the Merchant’s own business data for the Merchant’s normal business purposes.

"Back-up Site"

the computer facility owned or controlled by the Merchant and (unless agreed otherwise in this Agreement) located in the same country as the Installation Site at which a copy of the Software Products may be installed for the purposes of disaster recovery only in accordance with this Agreement.

"Background IP"

all rights, title and interest in and to any inventions (however embodied), know-how, works in any media, software, information, trade secrets, materials, property, proprietary interest or other Intellectual Property Rights which the referenced Party owned prior to the Effective Date, or which the referenced Party and/or third party licensors have created (or create) or have acquired (or acquire) independently of this Agreement, whether before or after the Effective Date.

"Business Day"

Monday to Friday excluding public holidays.

"Clause"

a clause or section of the General Terms and Conditions, including all sub-clauses (if any).

"Code"

both Object Code and Source Code.

"Confidential Information"

any information which has been or will be supplied or made available directly or indirectly by the Disclosing Party to the Receiving Party which would be generally considered by any reasonable third party, acting in good faith, to be commercially sensitive, confidential or a trade secret, whether or not marked confidential, private or otherwise.

"Derivative Works"

any materials, documentation, handbooks, or computer programs based upon the Software Products (but which are not Software Work Product) including translations, reproductions, abridgements, condensations or any other form in which the Software Products may be recast, transformed, adapted, revised or modified.

"Disclosing Party"

the Party that discloses Confidential Information.

"PMO Personnel"

PMO’s employees, agents and contractors.

"Effective Date"

the date upon which this Agreement is executed by all Parties as specified on page 1 of this Agreement.

"Force Majeure Event"

any event or circumstance beyond a Party’s reasonable control including natural disasters, health crises, riots, war, terrorism, civil disorder, court order, acts or regulations of governmental bodies, labour disputes, or failures or fluctuations in electrical power or telecommunications services, and which it could not have prevented by reasonable precautions.

"Good Industry Practice"

the application of the standards currently generally applied to the referenced Party’s industry by skilled and experienced persons in organisations of a similar size to and with similar resources as the referenced Party.

"Gross Negligence"

an act or failure to act which seriously and substantially deviates from a reasonable and competent course of action that would ordinarily be expected of a person engaged in the same type of undertaking under the same or similar circumstances and which is in reckless disregard of serious consequences known to the Party committing the act or failure.

"Help Desk”"

the service which PMO makes available to enable the Merchant to report Problems.

"Initial License Term”"

has the meaning given in Paragraph 2.1 of Schedule 2.

"Initial Maintenance and Support Term"

has the meaning given in Paragraph 6.1 of Schedule 3.

“Initial Response Time”

the time interval between Merchant’s notification of a Problem to the Help Desk and a PMO’s Personnel commencing an investigation of the Problem, as set out in Table 1 of Schedule 3.

"Installation Site"

the computer facility owned or controlled by the Merchant at which the Merchant is entitled to install any (or all) of the licensed copies of the Software Products; the Software Work Product and the Derivative Works.

“Instance”

each single copy of the Software Products which the Merchant is entitled to install pursuant to this Agreement.

“Intellectual Property Rights” or “IPR”

trademarks, service marks, trade names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, semi-conductor topography rights, database rights and all other similar proprietary rights which may subsist in any part of the world.

“License Schedule”

Schedule 2 to this Agreement.

“License Term”

the period of time during which the Merchant is entitled to use the System as specified at Paragraph 2 of Schedule 2.

"Maintenance and Support Services"

those services specified in Schedule 3.

"Maintenance and Support Term"

collectively the Initial Maintenance and Support Term.

“Main Version-Release”

a major update to the Software Products which includes enhancements or new functionality, and identified by the use of the last two digits of the then current calendar year, followed by the applicable Release number.

“Malware”

any computer software intentionally designed to cause damage to a computer, server, client, application or computer network. Malware may take different forms including computer viruses, worms, trojan horses, ransomware, spyware, adware, or scareware

“Named User”

an individual designated by the Merchant as a user of the Software Products for the Authorised Purpose. Activation keys will be assigned to Named Users for their exclusive use on a single, unique device.

“Next Service Pack”

the Service Pack scheduled for distribution by PMO to all PMO licensees who are eligible for and receiving Maintenance and Support Services, which is based on the previous delivered Service Pack.

“Non-Production Copies”

has the meaning given at Paragraph 3.2 of Schedule 2.

“Normal Business Hours”

09.00 to 17.30 GMT each Business Day.

"Object Code"

means computer programming code substantially in binary form that is directly executable by a computer after processing, but without compilation or assembly.

“Problem”

a difficulty, issue or error message which the Merchant encounters when using the System.

“Process” or “Processing”

any operation or set of operations which is performed on Personal Information or on sets of Personal Information, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Process” or “Processor”

“Production Copy”

the single Instance of the Software Products used by the Merchant for live data processing for the Authorised Purpose including the corresponding Software Products Documentation.

"Program Error"

a defect in the System (when operated in the operating environment specified in the Software Products Documentation) which prevents the System from performing a function described in the Software Products Documentation or which has a materially adverse effect on the use of the System, which can be reproduced by PMO.

“Receiving Party”

the Party who receives Confidential Information.

“Regulatory Requirements”

all applicable statutory and other acts, regulations, rules, instruments and provisions in force from time to time and any rules, codes of conduct, codes of practice, practice requirements and accreditation terms stipulated by any regulatory authority to which the referenced Party is subject from time to time.

“Release”

a collection of interim Code changes to a Main Version (that correct faults, enhance existing functionality or otherwise update the Main Version) including patches, bug fixes, additional functionality or enhancements to current functionality) together with any associated changes to the Software Product Documentation and installation instructions which will be made available to all PMO licensees as and when such Code changes are available.

“Service Charges”

the fees and charges paid or payable by the Merchant to PMO in consideration for the provision ofAdditional Services pursuant to a WorkAssignment.

“Service Pack”

a collection of interim Code changes to a Main Version-Release (that may correct faults, enhance existing functionality or otherwise update the Main Version-Release) including patches, bug fixes, additional functionality or enhancements to current functionality) together with any associated changes to the Software Product Documentation and installation instructions, which are made available to all PMO licensees as and when such Code changes are available.

“Services”

collectively, the Maintenance and Support Services, any Additional Services and any other services provided by PMO to Merchant under this Agreement.

"Software Products Documentation"

the most recent edition of the written materials and manuals (and machine-readable text subject to display and printout) describing the Software Products and provided by PMO.

"Software Product(s)"

the Main Version-Release of the proprietary Code specified at Paragraph 1 of Schedule 2 as updated by each subsequent Main Version-Release, Service Pack or Special Service Pack delivered as part of the Maintenance and Support Services.

“Software Warranty Period”

the period commencing on the initial delivery of the Software Products to the Merchant and continuing for the duration of the Maintenance and Support Term.

“Software Work Product”

all modifications of and/or enhancements to the Software Products that result from the provision of Additional Services, including, but not limited to, Code, documentation, specifications, logic and design.

"Source Code"

the computer programming code that may be displayed in a form readable and understandable by a programmer of ordinary skill, excluding Object Code.

“Special Service Pack”

a minor update and/or hot fix which may be made available to one, some or all PMO licensees outside of PMO’s normal delivery of a Service Pack typically to address emergency corrections or urgent enhancements.

“Standard Audits”

the audits which may be carried out by PMO or PMO’s designated auditor of the Merchant’s use of the System to assess compliance with the provisions of this Agreement.

"System"

the Software Products, Software Work Product (if any), and the Software Products Documentation.

"Term"

the period of time during which this Agreement shall remain in force, commencing on the Effective Date and continuing until the last to expire of:

The License Term; or
all Work Assignment Terms;

subject to earlier termination in accordance with the provisions of this Agreement

"Territory"

Being the United Kingdom. The Merchant shall not use the Software Products to support the Merchant’s business outside such Territory.

“Third Party IP”

any IP owned by a third party (other than PMO or Merchant) and any modifications, enhancements or derivative works in respect of that IP.

"Time and Materials Basis"

the basis upon which the Service Charges are calculated, in accordance with:

Working hours (as may be agreed and specified in the applicable Work Assignment);
any chargeable materials used in providing the Additional Services;
reimbursable expenses; and
VAT or other applicable taxes.

“Virus”

any device or thing (including any software, code, file or program) which may:

prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;
prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

“Wilful Misconduct”

any act or omission of a Party which is wrongful and wilfully intended to harm the interests of the other Party, provided however that negligence (including Gross Negligence), an error of judgment or mistake of a person, or an exercise of rights by a Party does not of itself amount to Wilful Misconduct.

“Work Assignment”

a sub-contract between the Parties under the provisions of this Agreement for the provision of Additional Services by PMO (the form of which shall be provided by PMO on request).

“Work Assignment Term”

the period of time during which Additional Services are to be provided as specified in the applicable Work Assignment.

“Work-Around”

a temporary solution (normally of a business nature) to reduce the impact of a Problem and which it is anticipated will be resolved by the delivery/implementation of a Service Pack, a Special Service Pack or a Main Version.

Schedule 2: License

1. Grant of License

1.1

In consideration for the payment of the fees specified in Schedule 4, PMO grants to the Merchant a non-exclusive, personal, non-transferable license to use the Object Code of the PMO proprietary software known as “ProtectMyOrder” (the “Software Product”), the Software Work Product (if any) and the Derivative Works (if any) in the Territory for the Authorised Purpose.

2. License Term

2.1

This Schedule 2 shall be in effect for a term commencing on the Effective Date of this Agreement and continuing in perpetuity thereafter unless or until the entire Agreement is terminated in accordance with its provisions (“License Term”).

3. Delivery and Scope of Licenses

3.1

PMO shall install remotely upon the Merchant’s hardware:

3.1.1

one (1) copy of the Software Products; and

3.2

The Merchant may not store the Production Copy on or otherwise use or make such copies available on any public external distributed network.

3.3

The Merchant may make copies of the Software Products Documentation as is reasonably necessary for the Merchant’s internal business use within the scope of the license granted at Paragraph 1 of this Schedule 2.

3.4

The Merchant shall reproduce PMO’s copyright, trademark, trade secret and other proprietary notices on all such copies, including partial copies of the Software Products, Software Work Product and the Software Products Documentation.

3.5

The Merchant agrees that the Software Products, the Software Work Product (if any) and the Derivative Works (if any) are PMO’s property and that this Agreement grants the Merchant no title or right of ownership in the Software Products; the Software Work Product and the Derivative Works. Other than as specified in this Agreement, the Merchant has no right to use, copy, distribute, redistribute, transfer, sub-license, modify or disclose all or any part of the Software Products; the Software Products Documentation; the Software Work Product or any Derivative Work.

3.6

The Merchant shall:

3.6.1

use the System (as installed at the Installation Site and (if necessary) the Back-up Site) and the Derivative Works (if any) only for the Authorised Purpose. The Merchant has no right to use the System or the Derivative Works to provide bureau services for third parties or to process data for third parties or to allow third parties to use the System or the Derivative Works to process Merchant data on the Merchant’s behalf;

3.6.2

keep a complete and accurate record of the Merchant’s copying and disclosure of the System (if and as permitted under this Agreement) and produce such record to PMO on request from time to time; and

3.6.3

use good industry practice to prevent any unauthorised access to or use of the System and any Derivative Works and if the Merchant becomes aware of any such unauthorised access or use, promptly notify PMO;

3.6.4

ensure the accuracy, adequacy, integrity, security, and Virus-checking of the Merchant’s computer systems (including the Merchant Data) and operate all necessary and daily back-up procedures to ensure the same are maintained in the event of any loss for any reason;

3.6.5

use the System only in accordance with Applicable Law and Regulatory Requirements and be solely responsible for any software and/or equipment not within the scope of the Maintenance and Support Services provided by PMO; and

3.6.6

remain responsible and liable for the use (including the use by third parties, whether fraudulently or at the Merchant’s request) of the System.

3.7

The Merchant may not (and shall not permit any third party to):

3.7.1

copy, adapt, reverse engineer, decompile, disassemble, modify (including, without limitation, using the Merchant’s own software programs or interfaces to write any data whatsoever to the Production Copy), create Derivative Works or make error corrections to the System, nor any Derivative Works, nor attempt to discover the underlying Source Code or trade secrets for any element of the System or Derivative Work which is supplied solely in Object Code, nor tamper with, bypass or alter any security feature, in whole or in part except to the extent expressly permitted by Applicable Law or Regulatory Requirements, and to the extent that PMO is not permitted by such Applicable Law or Regulatory Requirement to exclude or limit the Merchant’s right to do so, and in such circumstances, the Merchant shall provide PMO with reasonably detailed information about such activities. In particular (if the Merchant wishes to carry out any such action for the purpose of integrating the operation of the Software Products with the operation of other software or systems used by the Merchant) the Merchant may not do so unless PMO does not, within a reasonable period of time and for a reasonable fee, provide the information necessary to achieve such integration or does not agree to carry out such action at a reasonable fee;

3.7.2

sell, assign, pledge, lease, transfer, license, sub-license or in any way encumber the System (or any part of the System) or any Derivative Works; and3.7.2 sell, assign, pledge, lease, transfer, license, sub-license or in any way encumber the System (or any part of the System) or any Derivative Works; and

3.7.3

disclose the System (or any part of the System) or any Derivative Works to anyone other than third parties providing products or services to the Merchant, without (i) PMO’s prior written consent and (ii) the Merchant, PMO and the third party having executed either a non-disclosure agreement or a limited license agreement, as appropriate, in a form approved by PMO.

4. Site(s)

PMO shall install the System and any Derivative Works remotely only at those Installation Sites and (where necessary) at the Back-up Sites agreed with the Merchant. Other than those specified locations, the Merchant shall seek PMO’s prior written consent for any transfer to a different location.

Schedule 3: Maintenance & Support Services

1. Maintenance and Support Services

1.1

In consideration of the periodic payment(s) of the fees due under these Terms, PMO will provide the following Services:

1.1.1

A Shopify App that enables e-commerce Merchants selling on Shopify to upsell extra shipping protection at checkout. The App consists of:

1.1.1.1

Upsell widget. A toggle on a website's cart or checkout page. The App will be customised to fit with the Merchant's theme. ProtectMyOrder shall adhere to all Shopify regulations. Includes a pop up with more information on what is included in shipping protection.

1.1.1.2

Dashboard and settings. The App will enable a Merchant to configure whichever pricing settings they would like for its protection. The dashboard provided by PMO to the Merchant gives them an overview of their shipping protection operation: opt in rate, shipping protection revenue, average shipping protection charge per order.

1.1.1.3

Optimised pricing. PMO will run hundreds of automated a/b tests to find the optimal shipping protection charge. The Merchant can give parameters that PMO must work within. PMO may change the price and design of PMO at checkout based on the opt-in rate, protection revenue, conversion rate, product, geography of end customer and time.

1.1.1.4

Claims portal (not live yet). The Merchant will be able to embed our claims portal into their website. If a consumer has a problem, they just enter the relevant information through the portal. The Merchant can configure rules as agree with PMO such that consumers are given instant resolutions to their problems. For instance, if parcel hasn't moved on tracking for 10 days, it is automatically deemed as lost and the consumer is sent a new order by the Merchant. The PMO portal is intended to increase consumer satisfaction with the Merchant by dealing with and where possible, resolving problems instantly. Further, it will save time because Merchant service teams don't have to reply to repetitive queries.

1.1.2

Installation and testing – the PMO team will install, set up and test the App for free. This means testing for different bugs, ensuring the App does not cause any conflicts with other apps, with Shopify's system or other processes of the Merchant. For example, where the Merchant is using other upsell apps, apps that are used for bundling products, or email marketing tool, the App is configured so that the consumer journey is seamless.

1.1.3

Maintenance – after installation, PMO will continuously monitor the performance of the product App on the Merchant’s website, making sure there are no bugs or issues. The App will occasionally be updated to improve performance. The App will usually be updated automatically – it will not require the Merchant to take any action. Occasionally, the Merchant will have to update the App on Shopify – this process should not require more than 5 minutes of work.

1.1.4

Legal compliance. If required, we will suggest how the Merchant may craft its terms and conditions in order to ensure that the Merchant, and its terms and conditions, are compliant with the Territory’s regulations

2. Currency and Costs

2.1

The currency for the purpose of this Schedule 4 shall be US Dollars (USD)

2.2

In consideration of the provision of the Services set out in Schedule 3, the Merchant shall pay to PMO 15.99% of the PMO gross shipping protection revenue. This will be automatically calculated via the PMO Shopify app and billed monthly, at the same time as all the other Shopify app payments are made.

2.2.1

For example, if the Merchant charges $2 at checkout for PMO, PMO will charge the merchant $0.32.

2.2.2

For further illustration, if the Merchant collects $10,000 of shipping protection each month, PMO will charge the Merchant $1,599

3. Third Party Cost Increases

2.1

If PMO is responsible for Third Party costs, PMO shall have the right to pass any cost increases imposed by the Third Party for those Third Party products/services directly to Merchant. The following conditions and procedures shall apply:

2.1

Cost Increase Notification:

2.1

If there is any cost increase from third-party providers, the PMO shall promptly notify Merchant in writing, specifying the nature and extent of the cost increase.

2.2.2

PMO shall provide relevant supporting documentation or evidence justifying the cost increase, upon the Merchant’s reasonable request and where practicable for PMO to do so.

License and Maintenance Services Agreement

General Terms and Conditions

Schedule 2: License

Schedule 3: Maintenance & Support Services

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