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Terms & Conditions of Service

XpertruleSoftware Limited (UK registered company no. 1885600) whose registered office is at Innovation Forum, Frederick Road, Salford, Lancashire M6 6FP, UK hosts a service providing internet session-based access to rules engine authoring and runtime software (“the Service”).

You, the ‘Customer’, wish to use the Service in your business operations. As a user of the XpertRule Service you agree to the following terms and conditions (collectively the “Agreement”) and any policies or amendments that may be presented to you from time to time

DEFINITIONS AND INTERPRETATION

The definitions and rules of interpretation set out in this clause 1 apply to this Agreement in its entirety:

  • “Charges” means the Charges for the Services as set out in accordance with Appendix Section 1 (Charges)
  • “Confidential Information” means algorithms, trade secrets, know-how and confidential and proprietary information (including without limitation concepts and information), technical and research data, specifications, techniques, methods and processes, formulae, designs, product development data and financial and business information and including without limitation the Customer Data;
  • “Customer Data” means any data uploaded by the Customer in the course of receiving the Service;
  • “Customer Output” means the output produced by the Service following the processing of the Customer Data;
  • “Customer Solution” means any Customer Application which has been developed by the Customer using the Service;
  • “Helpline Hours” means between the hours of 9 a.m. and 5 p.m BST or GMT as the case may be, Monday through Friday, excluding U.K. statutory holidays; the hours during which Xpertrule or its nominated supplier can be contacted for first-line support in resolving faults or errors with the Service;
  • “Hosted Software”
  • means the Rules Authoring/Development and Rules Deployment Engine Software access to which is provided by Xpertrule to the Customer under this Agreement;
  • “Initial Fee” means the one-off fee payable (if any) by the Customer to Xpertrule on commencement of this agreement;
  • “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
  • “Login Pack” means the initial start up pack including account details, password and login link provided by Xpertrule to the Customer
  • “Service” means the service of allowing the Customer access to the Hosted Software via the internet.
  • A reference to “the Customer” shall, where the context so requires and where the Customer is a company or other organisation, include reference to such members of the Customer’s organisation or company as the Customer shall have authorised to use the Service on its behalf.
  • Words in the singular shall include the plural and vice versa.
  • A reference to any party shall include that party’s personal representatives, successors or permitted assigns.
  • A reference to a statute, statutory provision or subordinated legislation is a reference to it as it is in force from time to time.

INSTALLATION

Upon the Customer entering into this Agreement with Xpertrule, Xpertrule shall provide the Customer with a Login Pack to enable the Customer to access the Hosted Software using the Service SERVICE VIA THE INTERNET The Customer shall be entitled to receive the Service in accordance with the level of service agreed in this section. XpertRule will make available first tier support for the Service during the Helpline Hours The Customer acknowledges that the Service is made available over the web and that no hosting can be guaranteed and Xpertrule therefore shall have no liability to the Customer in respect of access difficulties which result from hosting issues or internet availability issues. Xpertrule warrants that it shall use all reasonable endeavours to ensure that uptime is equal to or in excess of 99% measured over any continuous four week period during the term and excluding scheduled downtime for maintenance and downtime arising out of factors falling within clause 3.3 above. For the avoidance of doubt, Xpertrule shall have no liability to the Customer for any failure to meet this target uptime percentage. The Customer acknowledges that Xpertrule has the right to sub-contract the hosting of the Service and/or provision of any helpline facilities but that such delegation shall not affect Xpertrule’s liability to the Customer as set out in this Agreement. CHARGES Upon entering this Agreement, the Customer undertakes to pay to Xpertrule the Charges in the amounts and frequencies set out in Appendix Section 1 (Charges).

USE AND CUSTOMER OBLIGATIONS

In relation to the Service: Xpertrule grants to the Customer on and subject to the terms and conditions of this Agreement the right to access the Service and upload Customer Data via the Service solely for the Customer’s business purposes save as specifically set out in clause 9 relating to third party access to the service; In the event that the Customer hires an Outsourcer/sub-contractor to perform a specific function then XpertRule agrees to grant to Outsourcer/Sub-contractor the right to access the Service and to upload Customer Data via the Service provided that such Outsourcer/sub-contractor may use the Service and/or any XpertRule confidential information only for Customer internal purposes and not for the benefit of such Outsourcer/ sub-contractor or any third party the Customer shall not: attempt to duplicate, modify or distribute any portion of the Hosted Software; or attempt to reverse decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the Hosted Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or store, distribute or transmit any material through the Service that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; that facilitates illegal activity; that depicts sexually explicit images; that promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities; Save as specifically set out below at clause [ 9 ] the Customer shall not: use the Service to provide services to third parties; or transfer, temporarily or permanently, any of its rights under this AGREEMENT; or attempt to obtain, or assist others in obtaining, access to the Service , other than as provided under this clause 5. The Customer undertakes to only use the Service in accordance with Xpertrule’s instructions. Xpertrule shall have no responsibility for any failure to access or use the Service which results from the Customer’s misuse, adaptation, mutation or incorrect application of the Service of Hosted Software. The Customer shall be responsible for ensuring that: where the Customer allows its employees to utilise the Service and Hosted Software on its behalf, those employees are aware of, and comply in full with, the terms and conditions of this Agreement; and the Customer’s Login Pack (and the login and account details included therein) is not used by third parties (other than the Customer’s own employees) for any purpose whatsoever. The Customer shall report any fault with the Service and/or Hosted Software as soon as reasonably practicable from such fault coming to the Customer’s attention.

INTELLECTUAL PROPERTY RIGHTS

The parties agree that: all Intellectual Property Rights in the Customer Data and the Customer Solution vest in and shall remain vested in the Customer at all times; and all Intellectual Property Rights in the Hosted Software vest in and shall remain vested in Xpertrule at all times. The Customer warrants to Xpertrule that it is the owner or originator of all Customer Data (or where it is not the owner or originator of the data in question, that it has obtained all necessary rights and permissions to use the data from the data’s owner or originator) and the Customer hereby agrees to indemnify and hold harmless Xpertrule against any and all claims (whether as to the legitimacy of the Customer’s use or otherwise) arising from the Customer’s use of such data including its use in the Customer Solution.

MONITORING

In entering into this Agreement, the Customer acknowledges that Xpertrule has the capability to monitor the Customer’s usage of the Service and the Customer hereby agrees that Xpertrule shall have the right, at any time, to monitor the Customer’s usage and usage frequency of the Service and the Hosted Software. The Customer also acknowledges that Xpertrule shall also have the right to monitor the Customer’s use of the Service and the Hosted Software where Xpertrule believes (in its sole reasonable opinion) that the Customer is breaching its obligations under clauses 5 or 9. XpertRule’s rights under this clause shall be subject to the terms of clause 13 Confidentiality.

ENHANCEMENTS AND MODIFICATIONS

Xpertrule will notify the Customer of any enhancement or modification to the Service and Hosted Software which affects their operation, performance or cost. Xpertrule reserves the right to introduce any substitute Hosted Software which will fulfil the same Function as that which it replaces subject to providing the Customer with notice of the same.

LICENSING OF CUSTOMER SOLUTION

Where the Customer uses the Service and the Hosted Software to produce a Customer Solution then the provisions of this clause 9 will be applicable to the use and licensing of the Customer Solution to a third party. The Customer Solution may only be provided to any third party on Software as a Service terms, such terms being agreed between the parties to this agreement. Without limitation, such terms must: protect Xpertrule’s rights in relation to the Service and the Hosted Software; procure that all end-users agrees to adhere to the provisions and terms of this agreement and in particular clauses 5, 6, 7, 8, 10, 11 and 13; and enforce those provisions against end-users or grant to Xpertrule a direct right to enforce those provisions under the Contracts (Rights of Third Parties) Act. Without prejudice to clause 9.2 above if the Customer licenses / provides the Customer Solution to a third party, then the Customer shall undertake for the term of this agreement not to provide that third party with a replacement or alternative product or service that replaces the XpertRule Service or Hosted Software. The Customer will indemnify Xpertrule against all costs, claims, damages and expenses arising out of or by reason of any breach of this clause by the Customer. Nothing in this clause 9 shall give the Customer any rights with respect to the Service or the Hosted Software save as expressly set out in this Agreement.

TERM AND TERMINATION

Unless otherwise agreed between Xpertrule and the Customer, the initial term of this Agreement is six (6) months from the date on which the Customer first uses the Service (“Initial Term”). The Customer shall have no right to terminate the AGREEMENT prior to the expiry of the Initial Term. This AGREEMENT shall continue beyond the Initial Term on a rolling monthly renewal basis unless and until terminated in accordance with clauses 10.3, 10.4 or 10.5 below. Without prejudice to any other rights or remedies which the parties may be entitled to, either party may terminate this AGREEMENT immediately upon serving written notice and without liability to the other if the other party: is involved in any legal proceedings concerning its solvency, or ceases trading, becomes insolvent or is sequestrated or enters into liquidation, whether compulsory or voluntary, other than for the purposes of a bona fide solvent amalgamation or reconstruction, or makes an arrangement with its creditors or petitions for an administration order or has an administrator, receiver, administrative receiver or equivalent appointed over all or any part of its assets or generally becomes unable to pay its debts within the meaning of section 123 or section 268 of the Insolvency Act 1986; or equivalent circumstances occur in any other jurisdiction. Xpertrule shall also have the right to terminate by notice in writing specifying the breach and (where capable of remedy) affording 30 days notice for remedy of the same where the Customer commits a material breach of its obligations under AGREEMENT. For the avoidance of doubt, a breach by the Customer of clause 5 or 9 shall automatically be deemed a material breach which is incapable of remedy entitling Xpertrule to terminate by notice in writing having immediate effect. Each party shall have the right to terminate this AGREEMENT on giving the other party two (2) months’ written notice of its intention to do so at any time after the Initial Term has expired. Upon termination of this AGREEMENT for any reason: all licences and rights granted under this AGREEMENT shall immediately terminate; the Customer shall immediately cease using the Service and in particular, the Hosted Software; save that the Customer shall have one week to use the Service to export a backup of the Customer Data as allowed for by the Hosted Software; the Customer shall immediately cease making the Customer Solution available to any third party; where the termination is due to the fault or breach of the Customer, Xpertrule shall immediately block the Customer’s access and the Customer shall not be entitled to access the Service or Hosted Software, or to use the same; the obligations in respect of confidentiality under clause 13 below shall apply.

WARRANTIES AND LIABILITY

Xpertrule undertakes that the Service will be performed using all reasonable skill and care. Xpertrule undertakes that the Hosted Software will perform substantially in accordance with the functionality described in the online user help documentation provided with the Service. Xpertrule does not undertake that the Hosted Software will perform or be capable of performing functions other than those explicitly specified in any published documentation. This undertaking shall not apply to the extent of any non-conformance which is caused by use of the Hosted Software or Service contrary to Xpertrule’s instructions or modification or alteration of the Hosted Software by any party other than Xpertrule or its agents. Xpertrule’s entire liability and the Customer’s exclusive remedy under the warranties in this clause 11 shall be, at Xpertrule’s option, for Xpertrule to either: repair or reconfigure the Service or Hosted Software; or where the error in the Service or Hosted Software is not remediable within a reasonable period of time (in all the circumstances), refund the price paid by the Customer and terminate this agreement (where possible, all Customer Data to be returned to the Customer as soon as reasonably practicable) Except for the express warranties set out in clause 11.1 and 11.2 above, Xpertrule makes and the Customer receives no other warranties, conditions or representations, express or implied, statutory or otherwise, and without limitation the implied terms of satisfactory quality and fitness for a particular purpose are excluded. Xpertrule does not warrant that the provision of the Service will be error-free or uninterrupted. It is the Customer’s responsibility to ensure that the Hosted Software is suitable for the Customer’s needs and the entire risk as to the performance of the Hosted Software is assumed by the Customer. In no event will Xpertrule be liable for any direct, consequential, incidental or special damage or loss or any kind, nor for any loss of profit, loss of contracts, business interruption, loss of or corruption to data or loss or waste of staff time howsoever caused and whether arising under contract, tort (including negligence) or otherwise. Xpertrule’s liability for direct loss caused by its negligence or breach of contract, and its liability if any exclusion, disclaimer or other provision contained in this Agreement is held invalid for any reason and Xpertrule becomes liable for loss or damage that could otherwise be limited, whether in contract, negligence or otherwise, will not exceed the amount in Charges paid to Xpertrule for the Service by the Customer. Nothing in this clause 11 shall operate to exclude or limit Xpertrule’s liability for: death or personal injury as a result of Xpertrule’s negligence; fraudulent misrepresentation; any other liability which cannot lawfully be excluded.

FORCE MAJEURE

Xpertrule shall have no liability to the Customer under this AGREEMENT if it is prevented from or delayed in performing its obligations under this AGREEMENT, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving Xpertrule’s workforce or the workforce of another party), failure of a utility service or transport network, act of God, riot, war, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration. CONFIDENTIALITY & Privacy Statement Each party undertakes that it shall not at any time during this AGREEMENT and for a period of 1 year after termination of this AGREEMENT disclose to any individual any Confidential Information of the other party excepting always that: each party may disclose the other party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this AGREEMENT. Each party shall ensure that its employees, officers and representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 13; and each party may disclose the other party’s Confidential Information where required to do so by law, court order or any governmental or regulatory authority. Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under this AGREEMENT. We consider it extremely important to handle Customer Data with all due care. Customer Data are processed and secured properly. In this context we comply with all the requirements contained in the UK Data Protection Act. We constantly review our systems and data to ensure the best possible service to our customers. We follow strict guidelines in regards to any offenses for unauthorized actions against computer systems and data. We will investigate any such actions with a view to prosecuting and/or taking civil proceedings to recover damages against those responsible WAIVER A waiver of any right under this AGREEMENT is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

SEVERANCE

If any provision (or part of a provision) of this AGREEMENT is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

ENTIRE AGREEMENT

This AGREEMENT, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each party, upon entering into this AGREEMENT, acknowledges and agrees that it does not rely on any undertaking, promise, assurance, statement representation, warranty or understanding (whether in writing or not) of any person (whether a party to this AGREEMENT or not) relating to the subject matter of this AGREEMENT, other than as expressly set out in this AGREEMENT.

ASSIGNMENT

The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this AGREEMENT without first obtaining Xpertrule’s express written consent to do so. Xpertrule may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights under this AGREEMENT.

MISCELLANEOUS

Nothing in this AGREEMENT is intended to or shall operate to create a partnership or relationship of agent and principal between the parties and neither party shall have the authority to bind the other in any way. Any notice or required to be given under this AGREEMENT shall be in writing and shall be delivered personally, or sent by email, or sent by pre-paid first class post or recorded delivery or by commercial courier, to each party required to receive the notice at the addresses for each party provide. This AGREEMENT is made for the benefit of the parties to it (and any permitted assigns) and it is not intended to benefit or be enforceable by anyone else. This AGREEMENT is governed by the laws of England and the parties to it agree to submit exclusively to the jurisdiction of the English courts. Appendix Section 1 : Charges & Billing Policies Billing for the XpertRule service will be on a monthly basis unless otherwise agreed between Xpertrule and the Customer. A valid credit card is required for paying accounts. Monthly-based subscriptions will be billed at the end of the month and will be as follows: £500 per month per user of graphical rules authoring The first 1000 Rules & Analytics engine API calls (Transactions) per month will be free. £1000 per 10,000 Rules & Analytics engine API calls (Transactions) Plan per month Additional API calls per month beyond 10,000 Plan will be changed at £0.1 per API call. Charges are solely based on Xpertrule’s measurements of API calls, unless otherwise agreed to in writing. All fees are exclusive of all taxes, levies or duties imposed by any national, federal, state or local taxing authorities other than United States (federal or state) net income taxes (collectively, “Taxes”). You shall be responsible for payment of all such Taxes, if any, and shall either by being billed for such Taxes at the time of monthly billing, or reimbursing XpertRule for the full amount of Taxes required to be paid by XpertRule within 30 days after receipt of an invoice therefore. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less). XpertRule reserves the right to suspend the provision of XpertRule Service to you for any late payments. You are responsible for paying all reasonable expenses and attorneys fees Xpertrule incurs collecting late amounts. To the fullest extent permitted by law, (1) you waive all claims relating to charges unless claimed within 60 days after the charge has been attempted (this does not affect your credit card issuer rights) and (2) refunds (if any) are at the discretion of XpertRule and shall be in the form of credit for Xpertrule Services. XpertRule may change its fees and payment policies for XpertRule Services at any time. In the event such changes might have a monetary effect on paying customers, XpertRule will notify affected customers at least thirty (30) days prior to the beginning of the billing cycle in which such change will take effect. Changes to the fees or payment policies will be posted on the website for XpertRule Services.


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