ICM FREEDOM

LICENCE HOSTING AND SUPPORT & MAINTENANCE AGREEMENT

1.1 In this Agreement unless inconsistent with the context or otherwise specified the following definitions will apply:

Additional Charges Goss' then prevailing standard rates from time to time;

Additional Services such additional services as Goss may agree to supply to the Customer from time to time pursuant to this Agreement;

Agreement these terms;

Business Hours 9am – 5pm Monday to Friday excluding bank or public holidays;

Commencement Date the purchase date;

Confidential Information all information designated as such by either Party in writing together with all other information relating to the business, affairs, plans, discussions, contacts, products, developments, trade secrets, know-how, personnel, customers, partners and suppliers of that Party;

Content any content, text, graphic, audio video, photograph or image to be used on or in connection with the Software;

Customer Contact such person as the Customer may notify Goss of from time to time in writing;

Customer Deliverables such information, documentation and/or materials as Goss may request from the Customer from time to time;

Documentation the online help files for and accessible via the Software;

Fault any error, fault or problem with the Software which has a material impact on the operation or use of the same. "material impact" for the purpose of this definition shall mean an impact where the Fault prevents or severely restricts the Customer using the Software or the Fault is resulting in a loss of or corruption to data which is critical to the Customer business;

Fees the non-refundable fee payable in respect of the Licence and the Services and payable in accordance with clause 10;

Goss Contact the person appointed by Goss (as may be changed by Goss in writing from time to time) to be the first point of contact in respect of any issues arising under this Agreement;

Hosting Services the hosting services carried out pursuant to clause 8.7;

Initial Term the period of three (3) months commencing on the Commencement Date;

IPR all copyright, database rights, patents, trademarks (whether registered or not), know-how together with any applications to register the same anywhere in the world;

Licence the licence granted by Goss to the Customer pursuant to clause 2;

Release any improved version of the Software which Goss (in its absolute discretion) makes available to the Customer;

Service Levels the service levels annexed to this agreement in respect of the Services (as amended by agreement from time to time);

Services the Hosting Services and the Support Services;

Software the software (in object code format) known as "iCM Freedom" the function and specification for which is annexed to this Agreement;

Standards the industry service standards identified in RFC 1099, 1122, 1123, 1250 together with such standards as Goss may notify the Customer of from time to time;

Support Services the support services set out in clause 8.1-8.6 (inclusive) and 9;

Uptime the period of time whereby the Software is accessible by end users without severe impairment but excluding planned maintenance carried out pursuant to clause 9;

Use remote access and use.

1.2 Clause headings are for reference only and do not affect the construction of this Agreement.

1.3 References to clauses are to the clauses of this Agreement.

1.4 A reference to a person shall include a reference to any individual, company, partnership, trust, association, government or local authority department or other authority or body (whether incorporated or unincorporated).

1.5 References to "in writing" shall include electronic transmission.

2.1 Subject to the Customer complying with this Agreement, Goss grants to the Customer a non-exclusive and non-transferable licence to Use the Software and the Documentation for the duration of this Agreement.

2.2 The Customer acknowledges and accepts that the licence granted pursuant to this Agreement is personal to the Customer. Under no circumstances must the Customer use the Software (or any part of it) to provide the services and/or facilities available via the Software to any third party.

2.3 The Customer shall as soon as reasonably possible inform Goss of all enquiries, complaints, problems, errors or concerns that the Customer has in respect of the Software and/or Documentation.

3.1 The Customer:

3.1.1 may Use the Software for processing its own internal business purposes only. The Customer shall not use or attempt to use the Software or permit any third party to do so other than as set out in this clause;

3.1.2 shall not transfer or distribute (whether by licence, sub-licence, loan, rental, sale or otherwise) all or any part of the Software to any other person or organisation;

3.1.3 shall not (remotely or otherwise) make for any purpose including (without limitation) for error correction, any alterations, modifications, copies, additions, adaptations, translations or enhancements to the Software except as specifically authorised in the Documentation nor permit the whole or any part of the Software to be combined with or become incorporated in any other program save as set out in this Agreement;

3.1.4 shall not, nor permit others to, decompile, reverse engineer or disassemble the Software or any part except that the Customer may decompile the Software only to the extent permitted by law where this is indispensable to obtain the information necessary to achieve the interoperability of an independently created program with the Software or with another program and such information is not readily available from Goss or elsewhere;

3.2 The Customer shall fully co-operate with all enquiries or investigations or requests for information from Goss relating to the Software.

3.3 The Customer shall not Use the Software for any of the following:

3.1.1 the operation or promotion of any sex/porn site or service;

3.1.2 the operation or promotion of any gambling, betting, gaming, lottery or other amusements which are illegal and/or unauthorised;

3.1.3 phishing and/or farming or any other deceptive practice;

3.1.4 distributing and/or sharing (or facilitating the distribution or sharing) of unauthorised data, malware, viruses, Trojan horses or worms;

3.1.5 any activity which violates or may violate the IPR of any third party;

3.1.6 facilitating the illegal export of any controlled or otherwise restricted items, including without limit, software, algorithms or other data that is subject to export laws.

4.1 The Customer shall not make or permit others to make any copies of the Documentation without Goss' prior written consent.

4.2 The Customer shall effect and maintain adequate security measures to safeguard the Documentation from unauthorised access use or copying.

5.1 The Customer:

5.1.1 will not acquire any IPR or other proprietary rights in the Software and/or Documentation or in any copies of the same;

5.1.2 agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the Software or which is visible during its operation or which is on any Documentation. The Customer shall incorporate such proprietary markings in any back-up copies of the Documentation;

5.1.3 shall notify Goss immediately if the Customer becomes aware of any unauthorised access to, use (including Use) or copying of any part of the Software by any person or organisation;

5.1.4 shall permit Goss to check the use of the Software by the Customer at all reasonable times. Goss may upon reasonable notice send its representatives to any of the Customer's premises to verify compliance with this Agreement and the Customer irrevocably consents to Goss representatives entering such premises for this purpose.

5.2 Subject to clause 5.1 and 5.3, all IPR and other proprietary rights existing prior to the date of this Agreement shall vest in their originator absolutely.

5.3 Goss shall own all IPR created, made and developed under or in connection with this Agreement by Goss including, without limitation, all right, title and interest in any ideas, concepts, know-how, techniques, code, materials, documentation and other work product (on whatever media).

6.1 Subject to the Customer complying with this Agreement, Goss shall use its reasonable endeavours to carry out the Services in accordance with the Service Levels. Goss shall carry out the Services in a professional, diligent and timely manner (taking into consideration any particular urgency stipulated by the Customer in writing to Goss in relation to any particular Support Services). Time for delivery of the Services shall not be of the essence unless otherwise agreed in writing by Goss. For the avoidance of doubt, Goss does not (unless otherwise agreed) give any guarantee of fix times for Support Services. Goss shall, however, use its reasonable endeavours to acknowledge receipt of any Fault reported to it within 4 Business Hours. Such acknowledgement shall, wherever reasonably possible include an estimate of the expected time for fixing such Fault.

6.2 It is expressly agreed and understood by the Parties that:

6.2.1 Goss is not in any way liable or responsible for selecting, advising in connection with the selection of, procuring, delivering, installing or paying for, or for the performance or non-performance of the Content, the Customer Deliverables or any of them; and

6.2.2 save as may be expressly provided in this Agreement, Goss is not in any way liable or responsible for selecting, advising in connection with the selection of, procuring, delivering or paying for, or for the performance or non-performance of, any third party hardware, software and/or services (or any part thereof) or for any unavailability or non-performance of the Software caused by a third party;

6.2.3 Goss shall be entitled to move (temporarily or permanently) the Software to other equipment provided that such move does not materially reduce or permanently impair the Services provided hereunder.

6.3 Goss may, in its sole discretion, subcontract at any time any or all of its obligations under this Agreement to any third party PROVIDED THAT such third party can provide the Services at no less standard that that provided by Goss hereunder.

6.4    Goss shall not be liable for any delays to the supply of, or the performance or non-performance of the Services or its failure to meet the Service Levels to the extent that such failure is caused by or resulting directly or indirectly from:

6.4.1 any failure by the Customer to perform its obligations under clause 7;

6.4.2 the act or omission of a third party other than Goss or its sub-contractors; or

6.4.3 maintenance carried out pursuant to clause 9.

6.5 Goss shall be entitled to charge the Customer, and the Customer shall pay, Additional Charges of any kind whatsoever suffered or incurred by Goss arising out of or in connection with clause 6.4.

7.1 The Customer shall:

7.1.1 pay the Fees and any Additional Charges pursuant to clause 10;

7.1.2 deliver the Customer Deliverables to Goss by the applicable due date in such format and on such media as Goss may reasonably stipulate;

7.1.3 report all Faults, problems and/or errors in respect of the Services or their delivery as soon as reasonably possible upon becoming aware of the same to the Goss Contact;

7.1.4 appoint a person to be the Customer Contact for all matters relating to this Agreement and/or the Services and ensure that such person has the necessary expertise to deal with enquiries raised by Goss and the necessary authority to make decisions relating to this Agreement;

7.1.5 provide, at its sole cost, all telecommunication services, computers and other equipment or services necessary to enable it to fully and properly access the Software and the Customer shall comply with all the rules and regulations that apply to such services and equipment;

7.1.6 without limitation, comply in a timely manner with its obligations contained herein;

7.1.7 be solely responsible for the choosing, clearing, registering and maintaining of a domain name to be used in connection with any Software;

7.1.8 be responsible for the security of any passwords and/or login credentials. Any actions taken using such password and/or login credentials shall be assumed to be fully authorised by the Customer.

7.2 The Customer acknowledges that Goss' ability to perform its obligations under this Agreement is dependent upon the Customer's full and timely co-operation with Goss, as well as the accuracy and completeness of the Customer Deliverables or any information and data the Customer or its agents, sub-contractors and/or representatives provide to Goss. The Customer shall without limitation:

7.2.1 provide Goss with access to, and use of, the Content and the Customer Deliverables and all information, data, documentation, computer time, facilities and personnel deemed necessary by Goss to enable Goss to perform its obligations hereunder;

7.2.2 forthwith upon being requested by Goss to do so at any time, provide any test data or other information and/or assistance reasonably requested by Goss from time to time.

7.3 The Customer shall be solely responsible for maintaining an external procedure for the reconstruction of lost or altered files, data or programs to the extent deemed necessary by the Customer, and for actually reconstructing any and all such materials.

7.4 The Customer shall not use the Services:

7.4.1 other than in conformance with the acceptable use policies of any connected networks and the Standards;

7.4.2 to send or receive a message or communication which is offensive, abusive, obscene, menacing, defamatory, in breach of confidence;

7.4.3 for the transmission of unsolicited commercial or advertising material either to other users of the Internet, or to organisations connected to other networks;

7.4.4 for the distribution or promotion of chain letter or pyramid-selling schemes;

7.4.5 for the distribution of binary files to non-binary news groups;

7.4.6 for the transmission of excessive multi-posting (Spamming) or excessive cross-postings in news groups or for the dissemination and/or transfer of any virus, worm or hacking device and/or information;

7.4.7 to allow deliberate unauthorised access to facilities or services accessible via the Service;

7.4.8 in a manner which is contrary to law;

7.4.9 in a manner which will or is likely to materially disrupt or prevent Goss providing services to other third parties.

7.5 Whilst Goss shall use its reasonable endeavours to keep the Customer Deliverables secure, the Customer accepts that risk in all Customer Deliverables shall remain with the Customer. The Customer is responsible for ensuring that all Customer Deliverables have been insured and that appropriate copies and/or backups have been taken and retained by it.

7.6 In the event that any problem and/or error should arise with the Customer Deliverables, Goss shall forthwith notify the Customer in writing of the same. Subject to the consent of the Customer, Goss shall (if it agrees) carry out repair and/or replacement work on such Customer Deliverables provided that Goss shall be entitled to levy Additional Charges for such work. For the avoidance of doubt, Goss shall not be liable for any delay and/or loss arising from any problem, fault and/or error with the Customer Deliverables nor will it be taken into account in calculating Uptime.

8.1 The Support Services shall not include dealing with any Fault which has arisen as a consequence of:

8.1.1 the Customer's failure to comply with any recommendations contained in any Documentation;

8.1.2 the Customer's neglect or misuse of the Software or its failure to operate the Software in accordance with the Documentation or for the purposes for which it was designed;

8.1.3 the alteration modification or maintenance of the Software by any party other than Goss without Goss' prior written consent;

8.1.4 any defect or error in any software (other than the Software) used upon or in association with the Software;

8.1.5 any accident or disaster affecting the Software including without limitation fire, flood, water, wind, lightning, transportation, vandalism or burglary; or

8.1.6 the adjustment, configuration or tampering of the Software by any other person other than Goss;

8.1.7 problems with any external network or equipment or problems caused by spam or mail bombing;

8.1.8 any software viruses, worms, trojans, time bomb or logic bomb or any unauthorised hacking.

8.2 Goss may (at its discretion) and upon request by the Customer provide all or any of the Support Services in respect of any Fault arising as a consequence of any matter set out in clause 8.1 but shall be entitled to levy Additional Charges for the same.

8.3 Without prejudice to clause 8.1, Goss shall be entitled to levy Additional Charges if Support Services are provided in circumstances where any reasonably skilled and competent data operator would have judged the Customer's request to have been unnecessary.

8.4 The Customer will complete in every case an error report in the form notified by Goss from time to time. Goss will not be obliged to commence work on any Fault until it has received the error report form correctly completed or, if the error report is by telephone, until it has received such information as should appear on the error report form.

8.5 The Customer will promptly provide Goss with all information and materials required by it for the purpose of investigation, diagnosis and correction of any reported Fault and shall provide Goss with such reasonable assistance as Goss may require in order to carry out the Support Services. Goss will not be liable for failure to provide, or any delay or error in providing, the Support Services resulting from the Customer's failure or delay in complying with this provision.

8.6 The Customer acknowledges and accepts that:

8.6.1 the Support Services do not (unless otherwise agreed include any repair, advice, assistance or support of Cold Fusion; and/or

8.6.2 in the event that Goss are unable to rectify a Fault or provide a workaround it may at its absolute discretion replace such Software which is subject to the Fault;

8.6.3 if a Fault is found upon investigation not to be Goss' responsibility under the provisions of this clause 8 Goss may charge the Customer Additional Charges immediately for all reasonable costs and expenses incurred by Goss in the course of or in consequence of such investigation;

8.6.4 it is the responsibility of the Customer to ensure that it has taken adequate back-up measures to protect or maintain any information or data collected, stored or used through the Software. Goss shall not be liable for any loss of or corruption to any data or information arising from a failure by the Customer to comply with this clause.

8.7 Goss shall:

8.7.1 host the Software at its premises;

8.7.2 use its reasonable endeavours to ensure an Uptime of the Software of 99.5% per year;

8.7.3 ensure that the server upon which the Software is loaded is maintained and held in conditions which would be normally prudent for a provider of such services including without limit in respect of environment conditions;

8.7.4 backup all data held on such server no less than 1 per day and to ensure that such data is kept at a secure off site location.

8.8 Goss shall be entitled to charge Additional Charges for any Services carried out outside the Business Hours.

9.1 Without prejudice to clause 9.2, Goss shall wherever reasonably possible:

9.1.1 give the Customer no less than two (2) days notice of any planned maintenance or upgrade work;

9.1.2 carry out such planned maintenance work outside Business Hours.

9.2 Goss shall be entitled to carry out any emergency and/or urgent maintenance work without notice to the Customer and at such times as it feels reasonably necessary PROVIDED THAT Goss will as soon as reasonably possible notify the Customer as to the likely time frame for completing such emergency maintenance work.

10.1 The Fees are payable by the Customer (without set off or deduction) in advance by credit card, by settlement of Goss' invoice (which shall be issued upon request) or by any other method approved by Goss from time to time for such period as the Customer may decide (subject to a minimum of 3 months). Once that period has expired, if the Customer wishes the Services to continue, it must pay additional Fees in respect of a further period (subject always to a minimum of 3 months). If the Customer has not paid the Fees in respect of an additional period, access to the Services shall be automatically suspended without notice. It is the Customer's responsibility to keep track of when further Fees are due. If the Services are disconnected pursuant to this clause 10.1, reconnection shall be dealt with in accordance with clause 10.5 below.

10.2 Goss may increase the Fees on each anniversary of the Commencement Date on giving the Customer no less than two (2) months notice in writing provided that such increase shall not be more than 10%. If the Customer does not accept such increase it shall serve notice to terminate this Agreement pursuant to clause 17.1 otherwise it will be deemed to have accepted such increase.

10.3 Payment of any Additional Charges shall be made without set off or deduction within 14 days of the date of Goss' invoice in respect of the same.

10.4 Without prejudice to Goss' rights pursuant to clause 17, in the event that the Customer fails to make payment of any Additional Charges by the due date, Goss shall be entitled to:

10.4.1 levy interest at the rate of 4% above the base rate of Barclays Bank plc from time to time in force in respect of any Fee and/or Additional Charge not paid by the due date; and/or

10.4.2 suspend the provision of any or all of the Services (at Goss' absolute discretion) provided that it has given the Customer 14 days written notice.

10.5 In the event that Goss suspends the provision of some or all of the Services (either pursuant to clause 10.1, 10.4.2 or on the expiry or termination of this Agreement) and subsequently agrees to recommence the Services, Goss shall be entitled to charge the Customer a reasonable sum in respect of reconnection fees (unless the disconnection was due to Goss's negligence). Reconnection shall not be possible after 60 days of the suspension of the Services.

10.6 All Fees and Additional Charges payable hereunder are exclusive of VAT.

11.1. Goss shall use reasonable endeavours to put in place and maintain a reasonable level of security, taking into account electronic security technology from time to time, to prevent and detect any breach of external security of the Software (i.e. from the world-wide web through Goss' internet firewall).

11.2 In relation to internal security protection for the Software (i.e. within Goss' firewall), Goss shall use reasonable endeavours to ensure that the Software is secure in all material respects. For the avoidance of doubt, Goss shall not be responsible for breaches of Goss' internal security by the Customer's employees, agents, representatives and/or sub-contractors.

11.5For the avoidance of doubt, Goss shall not be responsible for the "look and feel" design or appearance of the Software, the Content, the Customer Deliverables or any of the Customer's designs, specifications or instructions as to the Content, the Customer Deliverables, the linking from the Software to other websites or the content of those websites, all of which will be the sole responsibility of the Customer, and the Customer shall indemnify and at all times fully and effectively keep Goss indemnified against any and all losses, claims, damages, demands, liabilities, costs and expenses incurred by Goss arising from the use of such "look and feel" design of the Software, the appearance of the Software, the use of the Content, the Customer Deliverables or Goss following the Customer's design, specification or instructions as to Content or the Customer Deliverables, the linking of the Software to other websites or the content of those websites.

11.6 The Customer acknowledges that Goss has no control over the Content or the Customer Deliverables and does not purport to monitor the same. Notwithstanding the foregoing, Goss reserves the right (at its option) to restrict or prohibit access to the Software at any time or remove any Content or Customer Material from the Software and/or refuse to carry out any amendments, modifications or replacements of any Software or terminate or suspend the provision of the Services where it has reason to believe that there is or has been a breach of this Agreement.

The Customer hereby grants Goss (for itself and its sub-contractors) and/or shall procure that Goss (for itself and its sub-contractors) is granted for the duration of this Agreement a non-exclusive, worldwide, royalty-free licence to copy, make derivative works of, distribute, display, perform, transmit or otherwise use the Content, the Customer Deliverables and any intellectual property or other proprietary rights of the Customer (including, without limitation, any Customer hardware or software) or any third party to the extent necessary or desirable for the purpose of Goss' performance of its obligations under this Agreement. The Customer shall indemnify Goss and keep Goss at all times fully and effectively indemnified against any and all losses, damages, liabilities, demands, claims, costs and expenses suffered or incurred by Goss arising out of or in connection with any breach by the Customer of or failure of the Customer to comply with this clause 12.

13.1 Both parties shall duly observe all their obligations under the Data Protection Act 1998 which arise in connection with this Agreement. Without prejudice to the generality of the preceding sentence, both parties shall obtain, and at all times maintain, appropriate notification under the Data Protection Act 1998 appropriate to the performance of their obligations under this Agreement.

13.2 For the purposes of this Agreement, "Personal Data" shall have the meaning given in the Data Protection Act 1998. Subject to the Customer's compliance with clause 13.1, Goss shall (to the extent it processes any Personal Data on behalf of the Customer):

13.2.1 keep the Personal Data confidential and not disclose the Personal Data to any third party unless authorised by the Customer or required by law (for the avoidance of doubt, any such disclosure shall not constitute a breach of clause 13 by Goss);

13.2.2 has in place appropriate technical and organisational measures against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access and that any persons it authorises to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data.

13.3 The Customer shall indemnify and keep indemnified Goss from and against any and all costs, claims, damages, losses, expenses and liabilities arising as a result or in connection with any notice, action, claim, demand or allegation that any processing of Personal Data undertaken by Goss in accordance with the Customer's instructions infringes the rights of any third party or is in any way contrary to the provisions of the Data Protection Act 1998.

14.1 Each Party acknowledges that the other is likely to provide it with Confidential Information. Each Party undertakes to the other to treat as confidential and keep secret all Confidential Information contained in or otherwise received from the other in connection with this Agreement and shall not use the same for purposes other than in carrying out their respective rights and obligations hereunder.

14.2 The provisions of this clause 14 will not apply to any Confidential Information which:

14.2.1 is or becomes public knowledge other than as a result of the receiving Party's conduct; or

14.2.2 is independently developed without access to or use of the Confidential Information.

14.3 This clause 14 will continue in force notwithstanding the termination of this Agreement for any reason.

15.1 Goss warrants that:

15.1.1 the Software when properly used will provide the facilities and functions and perform substantially as described in the Documentation and the specification annexed to this Agreement;

15.1.2 it shall use reasonable endeavours to provide the Services in accordance with the Service Levels; and

15.1.3 it has full right, power and authority to enter into and perform this Agreement in accordance with its terms.

15.2 The Customer warrants to Goss that:

15.2.1 it has the full right and power to grant the licences in clause 12 and that it has obtained or will obtain all necessary permissions and consents to enable Goss to use any Content, the Customer Deliverables or any intellectual property or other proprietary rights of the Customer (including, without limitation, any Customer hardware or software) or any third party in providing the Services;

15.2.2 any Content, Customer Deliverables, Software or any other hardware, software, material or data provided to Goss will be free from any virus and will not damage or corrupt any Goss equipment, data or networks.

15.3 The Customer shall indemnify and keep Goss indemnified against any and all losses, claims, damages, demands, liabilities, costs and expenses (including without limitation, legal costs and expenses) incurred or suffered by Goss arising out of or in connection with a breach of clause 15.2.

15.4 Goss does not provide any warranties whatsoever in respect of any third party hardware or third party software.

15.5 Goss does not warrant that the operation of the Software will be uninterrupted or error-free or that the Software will be fit for the Customer's purpose.

15.6 Goss' obligation and the Customer's exclusive remedy under the warranty given in clause 15.1.1 is limited to either:

15.6.1 to Goss, at its own expense using all reasonable endeavours to rectify any non-conformance with the warranty by repair (by way of a patch, work around, correction or otherwise) within a reasonable period of time; or

15.6.2 to a refund of the applicable part of the Fee and any applicable Additional Charges if in Goss's reasonable opinion it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost, whereupon this Agreement shall terminate.

15.7 The Customer acknowledges that:

15.7.1 the Software and/or Documentation have not been designed to meet the Customer's individual requirements and that it is the Customer's responsibility to ensure that the facilities and functions of the Software and/or Documentation meet the Customer's requirements;

15.7.2 the Software cannot be used without Cold Fusion. It is the responsibility of the Customer to ensure that it has the correct version of Cold Fusion to operate with the Software.

15.7.3 It is responsible for ensuring that it complies with the provisions of the Cold Fusion licence at all times.

15.8 Goss will not be liable for any failure of the Software to provide any facility or function not described in the Documentation or for any failure of the Software attributable to any modification (whether by alteration, deletion, addition, authorised use or otherwise) to the Software by persons other than Goss or combination of the Software with other software or equipment without Goss' express prior written consent.

15.9 It is the responsibility of the Customer to ensure that it has taken adequate back-up measures to protect or maintain any information or data collected, stored or used through the Software. Goss shall not be liable for any loss of data or information arising from a failure by the Customer to comply with this clause.

15.10 If a problem is found upon investigation not to be Goss' responsibility under the provisions of this clause 15 Goss may charge the Customer immediately for all reasonable costs and expenses incurred by Goss in the course of or in consequence of such investigation.

15.11 Save as expressly provided for in this Agreement, all other conditions, warranties, terms, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise (including, without limitation, implied terms of satisfactory quality and fitness for a particular purpose) are excluded by Goss to the fullest extent permitted by law and Goss shall have no other obligation, duty or liability whatsoever in contract, tort (including negligence), statute or otherwise to the Customer.

16.1 The Customer acknowledges that Goss obligations and liabilities in respect of the Software, Documentation and the Services are exhaustively defined in this Agreement. The Customer agrees that the express obligations and warranties made by Goss in this Agreement are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise, relating to anything supplied or services provided under or in connection with this Agreement including (without limitation) any warranty as to the condition, satisfactory quality, performance or fitness for purpose of the Software and/or Documentation or any part of them.

16.2 The Customer is responsible for the consequences of any use (including without limit the Use) of the Software and Documentation. Goss will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, tort (including negligence) or otherwise, including (without limitation) loss of production, loss of or corruption to data or information, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if Goss Interactive has been advised of their possibility.

16.3 Goss accepts liability to the extent that it results from the negligence of Goss and its employees for death or injury without limit.

16.4 In all other cases not falling within clause 16.3 Goss' total liability (whether in contract, tort, including negligence, or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution will not exceed the aggregate of the Fees paid by the Customer to Goss for the 12 months prior to the date which gave rise to the claim.

16.5 The Customer agrees that except as expressly provided in this Agreement, Goss will not be under any liability of any kind whatever and however caused arising directly or indirectly in connection with this Agreement. The Customer will indemnify Goss in respect of any third party claim for any injury, loss, damage or expense occasioned by or arising directly or indirectly from the Customer's possession, operation or use of the Software and/or Documentation except and in so far as Goss is liable as expressly provided in this Agreement.

16.6 Save as required by law, Goss shall not be liable for any loss, claim of damage incurred as a consequence of the acts or omissions of the Customer, employees and/or sub-contractors.

16.7 The Customer acknowledges that it is solely responsible for ensuring that all equipment and software (including the Software) is maintained in accordance with any manufacturers instructions including without limit any environmental or technical conditions.

16.8 The Customer acknowledges and agrees that the allocation of risk contained in this clause 16 is fair and reasonable and is also a recognition of the fact that, the Software cannot be tested in every possible combination and it is not within Goss' control how and for what purpose the Software is used by the Customer.

17.1 Subject to the remainder of this clause 17, this Agreement shall commence on the Commencement Date and continue in full force and effect for the Initial Term and then until terminated pursuant to this Agreement.

17.2 The Customer or Goss (as the case may be) may terminate this Agreement immediately if the other:

17.2.1 expressly or impliedly repudiates this Agreement by refusing or threatening to refuse to comply with any of the provisions of this Agreement; or

17.2.2 fails to comply with any of the provisions of this Agreement and/or the Licence Agreement and (in the case of a failure capable of being remedied) does not rectify such non-compliance within 14 working days of written notice from the non-defaulting party of it; or

17.2.3 convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up; or

17.2.4 has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator; or

17.2.5 being an individual commits any act of bankruptcy or compounds with his creditors or comes to any arrangements with any creditors;

17.2.6 serves 1 months notice that it wishes to terminate this Agreement.

such termination to be without prejudice to any rights that the Parties may have against each other.

17.3 Goss may terminate this Agreement immediately if the Customer breaches the terms of the Cold Fusion agreement.

17.4 Goss may terminate this Agreement immediately if the Customer fails to pay any of the Fees or any Additional Charge.

17.5 Without prejudice to its rights hereunder, Goss shall be entitled (at its discretion) to suspend the provision of the Services (or any of them) if the Customer fails to carry out its obligations hereunder in accordance with this Agreement.

17.6 The Customer (if it is a public authority) shall be entitled to terminate this Agreement immediately if Goss have offered or given or agreed to give any person a gift or consideration of any kind:

17.5.1 as an inducement or reward for doing or forbearing to do or for having done or forborne to do any action in relation to the obtaining or execution of this Agreement or any other contract with the Customer;

17.5.2 for showing favour or forbearing to show favour to any person in relation to this Agreement or any other contract with the Customer;

17.5.3 if the like acts shall have been done by any person employed by him acting on his behalf (whether with or without the knowledge of Goss);

17.5.4 if in relation to any contract with the Customer, Goss or any other person employed by Goss or acting on Goss' behalf shall have committed any offence under the Prevention of Corruption Acts 1889-1916, or any amendment or reenactment of them or shall have been given any fee or reward the receipt of which is an offence under Section 117(2) of the Local Government Act 1972.

18.1 On termination of this Agreement however caused the Licence and the provision of the Services will automatically cease and the Customer undertakes immediately to cease to use the Software and/or Documentation.

18.2 Upon termination or expiration of the Agreement (for whatever reason), Goss shall provide to the Customer or to any third party appointed by the Customer to provide replacement services such reasonable assistance as may be required by the Customer or by such third party for the establishment and provision of replacement services, including (but not by way of limitation) assistance in transferring the Customer Deliverables and related documentation and knowledge. Goss shall be entitled to charge Additional Charges for the provision of such assistance.

18.3 Termination of this Agreement, however caused, shall not affect the rights of either party under this Agreement which may have accrued up to the date of termination.

19.1 Each party undertakes that it shall not during the Term and for a period of 12 months thereafter, without the prior written consent of the other, either alone or in conjunction with or on behalf of any person, firm or company: 

i. directly or indirectly solicit or entice or attempt to solicit or entice any person who, to its knowledge, is or was in the 12 months prior to such solicitation or enticement (or attempted solicitation or enticement) employed by the other; or

ii. assist any other person to do any of the foregoing.

19.2 Without prejudice to 13.1 above, each party further undertakes that it shall not during the Term and for a period of 12 months thereafter, without the prior written consent of the other, employ any person who, to its knowledge, is or was in the previous 12 months employed by the other.

Neither party will be liable for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under this Agreement due to any cause outside its reasonable control. Such delay or failure will not constitute a breach of this Agreement and the time for performance of the affected obligation will be extended by such period as is reasonable.

Neither the Customer or Goss may assign, loan, lease or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed) save that it is acknowledge and accepted by the Customer that Goss shall be entitled to sub-contract its obligations hereunder.

All notices which are required to be given under this Agreement will be in writing and will be sent to the registered address of the recipient or such other address as the recipient may designate by notice given in accordance with this clause. Any such notice may be delivered personally by first class pre-paid letter or facsimile transmission and will be deemed to have been received:

22.1 by hand delivery–at the time of delivery;

22.2 by first class post–48 hours after the date of mailing;

22.3 by facsimile transmission or electronic transmission –immediately upon transmission.

If any part of this Agreement is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable then such part shall be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.

No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them, nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing. The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.

25.1 This Agreement is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and arrangements, written or oral. The Customer acknowledges that no reliance is placed on any representation made but not embodied in this Agreement. The printed terms and conditions of any purchase order or other correspondence and documents of the Customer issued in connection with this Agreement will not apply unless expressly accepted in writing by Goss.

25.2 Except as otherwise permitted by this Agreement no change to its terms will be effective unless it is in writing and signed by persons authorised on behalf of both parties.

This Agreement shall be construed in accordance with and governed by the law of England and Wales and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales. Headings have been included for convenience only and shall not be used in construing any provision in this Agreement.

Except as otherwise expressly stated herein, nothing in this Agreement confers any rights on any person (other than the parties hereto) pursuant to the Contracts (Rights of Third Parties) Act 1999.