MOSAIC – CLOUD DEPLOYMENT

COMMERCIAL TERMS

BETWEEN:

TITIAN SOFTWARE LIMITED, whose registered office is at 2 Newhams Row, London SE1 3UZ, United Kingdom with UK company number 03867924 (“Titian”); and

[NAME OF SUBSCRIBER] whose registered office is at [Address of Subscriber] with [Country of company registration] company number [X] (the “Subscriber”).

Software

Titian is the owner and licensor of Mosaic, a software product for sample management (the “Software”), which it makes available to Subscribers via the internet on a subscription basis for the purpose of allowing Subscribers to manage the storage and distribution of life science samples (“Samples”).

Specification

The specification of the software depends on versions and modules licensed, Mosaic User Guides are available on request.

Scope of Use

The “Authorised User Licenses” are set out in the agreed Order Sheets/Quotations, which form part of this Agreement.

The “Authorised Device Licenses” set out in the agreed Order Sheets/Quotations, which form part of this Agreement.

Effective Date

The Effective Date is the date of execution of this Agreement.

Subscription Start Date

The Subscription Start Date is set out in the agreed Order Sheets/Quotations, which form part of this Agreement.

Initial Subscription Term

The Initial Subscription Term is 12 months, commencing on the Subscription Start Date.

Renewal Period

At the end of the Initial Subscription Term, this Agreement shall be automatically renewed for successive periods of 12 months.

Each 12-month term is a Renewal Period.

Normal Business Hours

For Subscriber sites in the USA:
Monday to Friday, 8:00 am to 5:00 pm ET (Eastern Time), excluding Titian Software US, Inc. company holidays.

For Subscriber sites outside the USA:
Monday to Friday, 8:00 am to 5:00 pm UK time, excluding UK public holidays.

Hosting Region

Insert appropriate hosting region

Support Services

Support Services shall be provided pursuant to Schedule 1.

Technical Support Working Day

The Support Services will be available during the following times:

For Subscriber sites in the USA:
Monday to Friday, 8:00 am to 5:00 pm ET (Eastern Time), excluding Titian Software US, Inc. company holidays.

For Subscriber sites outside the USA:
Monday to Friday, 8:00 am to 5:00 pm UK time, excluding UK public holidays.

Installation and Configuration Services

Installation and Configuration services is set out in the Order Sheets/Quotations and the associated Statement of Work (“SoW”) (if applicable).

Fees

All amounts are in British Pounds / Euro / US Dollars

Subscription Fee

The annual Subscription Fees payable by the Subscriber to Titian for the Software are set out in the agreed Order Sheets/Quotations which form part of this Agreement.

Titian reserves the right to increase the Subscription Fee at the beginning of each Renewal Period.

Payment Terms for Subscription Fee

Titian shall raise the subscription invoices on the subscription start date. Invoices must be paid within thirty (30) days of the date of the invoice.

Support Services Fee

Support Services are included in the annual Subscription Fee. No additional Support Services Fee is payable.

Installation and Configuration Services Fee

Installation and Configuration Services Fees payable by the Subscriber to Titian are set out in the agreed Order Sheets/Quotations which form part of this Agreement.

Payment terms for Installation and Configuration Services Fee

Titian shall raise invoices as stated in the associated Order Sheet/Quotation. Invoices must be paid within thirty (30) days of the date of the invoice.

Notices

All notices sent by post shall be sent to the following addresses:

For Titian:

Titian Software Limited
2 Newhams Row
London, SE1 3UZ
U.K.
Attn: Chris Henderson
+ 44 20 7637 6869 (tel)
+ 44 20 7367 6868 (fax)

For the Subscriber: [INSERT DETAILS]

Terms and Conditions

(A) Titian is the owner and licensor of certain Software as described in the Commercial Terms and is willing to license the Subscriber to use this Software.

(B) The Subscriber wishes to take a license of the Software on the terms and conditions set out in this Agreement.

1 Grant of License

1.1 Titian hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicenses, to use the Software during the Initial Subscription Term and any Renewal Period solely for its internal business purposes, further detailed in the Commercial Terms (“License”).

1.2 Titian shall, during the Initial Subscription Term and any Renewal Period, provide the Software to the Subscriber on and subject to the terms of this Agreement.

1.3 The Subscriber acknowledges that Titian uses the Elastic Compute Cloud (EC2) service provided by Amazon Web Services to host the Software. For further information on Amazon Web Services please visit https://aws.amazon.com/. The availability offered by Amazon Web Services EC2 for the Software is as stated in https://aws.amazon.com/ec2/sla/.

1.4 Titian shall use reasonable endeavours to make the Software available to the full extent of the availability offered by Amazon Web Services, and to avoid disruptions, except for:

planned maintenance performed every Monday between 1am and 6am, local time for the majority of the Subscriber’s users of the Software;
planned maintenance performed during or outside Normal Business Hours at Titian’s discretion, on providing 14 days’ prior written notice to the Subscriber;
unscheduled maintenance performed outside Normal Business Hours; and
any unplanned emergency maintenance in which case no prior written notice shall be provided

1.5 Titian will use commercially reasonable endeavours to back up the Subscriber Data (as defined in clause 10.1 below) once in every 24 hour period.

2 Scope of Use

2.1 The Subscriber shall not exceed the number of Authorised User Licenses or Authorised Device Licenses stated in the Commercial Terms

2.2 Titian reserves the right to charge additional Subscription Fees if the Subscriber exceeds the number of Authorised User Licenses or Authorised Device Licenses.

2.3 A single Authorised User License allows a single named individual to use the specified item. The Subscriber may substitute an Authorised User License to another designated user provided that:

the substitution is a result of a real business event, such as a user leaving the Subscriber or moving to a different department;
no more than four (4) such substitutions occur per licensed item per year; and
at no time does the total number of Authorised User Licenses in use exceed the number of Authorised User Licenses.
The Subscriber is not required to notify Titian of such license substitutions.

2.4 A single Authorised Device License allows the specified item to be used on one device, of a specific type and with a specific name or other unique identifier. The Subscriber may substitute an Authorised Device License to another device provided that:

the substitution is a result of a fault in the original device, which renders it inoperable;
the Authorised Device License is returned to use on the original device and removed from the substitute device as soon as reasonably possible after the fault in the original device has been rectified;
at no time does the total number of Authorised Device Licenses in use exceed the number of Authorised Device Licenses.
The Subscriber is not required to notify Titian of such license substitutions.

2.5 If the number of Authorised User Licenses and/or Authorised Device Licenses is changed by the Subscriber part way through the Initial Subscription Term or any Renewal Period, the resulting additional Subscription Fees shall be pro-rated from the date of delivery by Titian of the additional Licenses for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

2.6 The Subscriber shall permit Titian to audit the Software in order to establish that the Subscriber’s use of the Software conforms to the Scope of Use stated in this Agreement. Such audit may be conducted no more than once per quarter, at Titian's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber's normal conduct of business.

2.7 If any of the audits referred to in Clause 2.6 reveal that the Subscriber’s use of the Software does not conform with the Scope of Use stated in this Agreement then, without prejudice to Titian's other rights, the Subscriber shall promptly cease using the Software for users and / or devices that exceed the maximum number of Authorised User Licenses or Authorised Device Licenses (as applicable).

2.8 If any of the audits referred to in Clause 2.6 reveal that the Subscriber has underpaid Subscription Fees (as set out in the Commercial Terms) to Titian, then without prejudice to Titian's other rights, the Subscriber shall pay to Titian such underpayment within 30 Days of the date of the relevant audit.

2.9 Except as expressly set out in this Agreement, the Subscriber has no right (and shall not permit any third party) to reverse engineer, reverse assemble, disassemble or decompile the Software, except to the extent permitted by law and/or to the extent that such action is legitimately necessary to achieve the inter-operability of an independently created program with the Software or another program and such information is not readily available on request from Titian or elsewhere.

2.10 The Subscriber undertakes:

not to copy, reproduce, translate, adapt, vary or modify the Software nor to communicate the same to any third party without Titian’s prior written consent;
to maintain accurate and up-to-date records of the number of users and number of devices using the Software;
to supervise and control use of the Software in accordance with the terms of this Agreement;
use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and, in the event of any such unauthorised access or use, promptly notify Titian;
to reproduce and include the copyright notice of Titian on all and any copies whether in whole or in part in any form including partial copies of modifications of the Software made herein; and
not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings object and source program listings object code and source code) in any form to any person other than the Subscriber’s employees without prior written consent from Titian.

2.11 Support and maintenance services (the “Support and Maintenance Services”) shall be provided in accordance with the Commercial Terms and Schedule 1.

2.12 The Subscriber may request Titian to provide services (“Installation and Configuration Services”) to assist the Subscriber to install and initially configure the Software, and to provide training to the Subscriber in the use of the Software. Such Installation and Configuration Services shall be provided in accordance with the Commercial Terms.

2.13 Titian shall use reasonable endeavours to meet the dates or timelines stated in this Agreement in relation to the delivery of the Software or the provision of Installation and Configuration Services or Support and Maintenance Services

2.14 When the Software has been installed and configured, Titian shall notify the Subscriber that the Software is ready for acceptance testing. The date of this notification is the “Ready for Acceptance Testing Date”.

2.15 The Subscriber shall, in accordance with the Project Plan or as otherwise agreed between the parties, perform testing to verify that the Software conforms with the Specification and that any Subscriber-specific configuration agreed between the parties is functioning as agreed (the “Acceptance Tests”).

2.16 Upon successful completion of the Acceptance Tests the Subscriber will indicate its acceptance of the Software by signing a “Final Acceptance Certificate”. The date of acceptance is the “Acceptance Date”. If at any time the Subscriber commences live running of the whole or any part of the Software, the Subscriber shall be deemed to have accepted the Software and the Acceptance Date shall be deemed to be the date of first use of the Software by the Subscriber.

2.17 A “Non-Conformity” means a material failure of the Software to conform with the applicable Specification which substantially reduces the functionality of the Software. For the avoidance of doubt a Non-Conformity does not include any cosmetic defects in the Software. If a Non-Conformity is found during the Acceptance Tests, the Subscriber shall provide Titian with written details of the Non-Conformity and Titian shall have such period as is reasonable in the circumstances to correct the Non-Conformity and deliver the modified Software to the Subscriber. The Acceptance Tests shall be performed on the corrected Software. The procedure set out in this Clause 2.17 may be repeated such number of times as the parties may agree.

2.18 Notwithstanding clause 2.17, if in Titian’s reasonable opinion the Non-Conformity cannot be reasonably corrected, Titian shall have the option to allow the Subscriber to cease use of the Software and terminate this Agreement. Titian shall refund all Fees paid by the Subscriber in full and final settlement of any loss or damage incurred by the Subscriber, on return of the Software and all copies thereof.

2.19 Notwithstanding clause 2.17, if in the Subscriber’s reasonable opinion the Non-Conformity cannot be corrected within a reasonable timescale, the Subscriber shall have the option to cease use of the Software and terminate this Agreement. Titian shall refund all Fees paid by the Subscriber in full and final settlement of any loss or damage incurred by the Subscriber, on return of the Software and all copies thereof.

3 Subscription Fees

3.1 The Subscriber shall pay to Titian the Subscription Fees as stated in the Commercial Terms.

3.2 All sums stated in this Agreement are exclusive of VAT or any relevant local sales taxes, for which the Subscriber shall be additionally responsible.

3.3 If the Subscriber fails to make any undisputed payment due to Titian under this Agreement by the due date for payment, then, without limiting any of Titian’s remedies under this Agreement, Titian may charge the Subscriber interest on the overdue undisputed amount at the rate of 4% per annum above HSBC Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Subscriber shall pay the interest together with the overdue amount.

3.4 Titian reserves the right to increase the Subscription Fees at the beginning of each Renewal Period by providing at least sixty (60) days’ written notice to the Subscriber.

4 Assignment

4.1 This Agreement shall be binding on the parties and their respective successors and assignees.

4.2 The Subscriber shall have no right to assign the License to any other party, except with the prior written consent of Titian.

5 Sub-Licensing

5.1 The Subscriber shall have no right to grant sub-licenses except with the prior written consent of Titian.

6 Confidentiality

6.1 The Subscriber and Titian shall both, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this Agreement) nor without the prior written consent of the other, disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) information of a confidential nature (including trade secrets and information of commercial value) which may become known and which relates to the other or any of its affiliates, unless that information is public knowledge or already known to the relevant party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party. The Subscriber and Titian shall each use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

6.2 Neither the Subscriber nor Titian shall make, nor permit any person to make, any public announcement disclosing the particulars of this Agreement without the prior written consent of the other, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. The Subscriber agrees that Titian may refer to the Subscriber as a subscriber on its website and in its promotional material.

6.3 For the avoidance of doubt, drawings, specifications, documents, design materials, user guides and other data relating to the Software are confidential to Titian and the Subscriber must comply with Clause 6.1 in respect of such information.

6.4 For the avoidance of doubt, the Samples and Subscriber Data are confidential to Subscriber and Titian must comply with Clause 6.1 in respect of such information.

6.5 Each party will ensure that each of its employees, agents and contractors will comply with the provisions contained within this Clause 6.

7 Export

7.1 Neither the Subscriber nor Titian shall export, directly or indirectly, any technical data acquired from the other under this Agreement (nor any products, including software, incorporating any such data) in breach of any applicable laws or regulations (“Export Control Laws”), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval.

7.2 The Subscriber and Titian undertake:

contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
if requested, to provide the other with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

8 Termination

8.1 This Agreement shall commence on the Effective Date and shall continue in full force and effect until the end of the Initial Subscription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a "Renewal Period"), unless:

at least 30 days before the end of a Renewal Period, Subscriber notifies Titian of termination, in writing, for reason or no reason, in which case this Agreement shall terminate at the end of that Renewal Period; or
at least 180 days before the end of a Renewal Period, Titian notifies Subscriber of termination, in writing, for reason or no reason, in which case this Agreement shall terminate at the end of that Renewal Period; or
otherwise terminated in accordance with the provisions of this Agreement.

8.2 Either party may terminate this Agreement immediately upon written notice to the other if:

the other party is in material or persistent breach of any of the terms of this Agreement and (if such breach is capable of remedy) fails to remedy the same within thirty (30) days of receipt of a written notice from the other party requiring it to do so; or
if the other party convenes a meeting of its creditors or if a proposal shall be made for a voluntary arrangement within Part I of the Insolvency Act 1986 or a proposal for any other composition scheme or arrangement with (or assignment for the benefit of) its creditors or if the other shall be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other or for the making of an administration order (otherwise than for the purpose of an amalgamation or reconstruction), or if in the United States, similar actions shall be taken by either party under applicable US Bankruptcy laws or similar laws regarding the rights of creditors

8.3 Titian may terminate this Agreement immediately on providing written notice to the Subscriber if the Subscriber

does not make any undisputed payment(s) when due and such payment(s) remains unpaid thirty (30) days after written notice from Titian that such payment(s) is past due.
under the circumstances stated in either clauses 2.18 and 9.2(c)

8.4 On termination for any reason:

all rights granted to the Subscriber under this Agreement shall cease;
The Subscriber shall cease all activities authorised by this Agreement;
The Subscriber shall immediately pay to Titian any sums due to Titian under this Agreement or Titian will refund any prepaid Subscription Fees;
The Subscriber shall immediately destroy or return to Titian (at Titian’s option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to Titian that it has done so; and
On written request by the Subscriber, Titian shall export the current version of the Subscriber’s Sample inventory data contained in the Software. For avoidance of doubt, Titian shall not provide an export of any configuration data, audit trail data or other data.

Termination in accordance with this Clause 8 shall be without prejudice to any rights or remedies of either party accrued prior to the date of termination.

9 Warranty

9.1 Titian warrants to the Subscriber that the Software will for a period of sixty (60) days from the Subscription Start Date (“Warranty Period”):

be free from material defects in design, material and workmanship; and
conform substantially with the description, functionality, standards, performance requirements described in in the Commercial Terms (the “Specification”).

9.2 If, within the Warranty Period, the Subscriber notifies Titian in writing of any defect or fault in the Software in consequence of which it fails to conform substantially to the Specification, Titian shall assess the severity of the fault or default and, at its option, do one of the following:

Repair the Software;
Replace the Software; or
terminate this Agreement immediately by notice in writing to the Subscriber and refund any of the Fees paid by the Subscriber as at the date of termination on return of the Software and all copies thereof

provided the Subscriber provides all the information that may be necessary to assist Titian in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable Titian to re-create the defect or fault.

9.3 Titian does not warrant that at any time the Software will be entirely uninterrupted or error or bug-free.

9.4 Titian warrants that to the extent of its knowledge, the supply of the Software to the Subscriber and use of the Software by the Subscriber does not infringe the intellectual property rights of any third party.

9.5 Titian warrants that the Support and Maintenance Services and the Installation and Configuration Services will be carried out with reasonable skill and care by personnel with appropriate experience.

9.6 The Subscriber shall notify Titian in writing of any breach of the warranty set out in Clause 9.5 promptly and in any event within ninety (90) days of the provision of the Support and Maintenance Services and Installation and Configuration Services in issue. The Subscriber shall provide all information as may be deemed necessary by Titian to assist Titian in resolving any such breach.

9.7 The Subscriber’s sole remedy for breach of the warranty set out in Clause 9.5 shall be that Titian shall cure the breach without charge to the Subscriber and if in Titian’s reasonable opinion, it is unable to cure such breach then Titian shall refund that portion of the Support and Maintenance Services Fee and / or Installation and Configuration Services Fee that corresponds to the breach.

9.8 This Agreement sets out the full extent of Titian’s obligations and liabilities in respect of the license of the Software hereunder. Titian does not provide any conditions, warranties, representations or other terms, express or implied, except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the Software which might otherwise be implied into or incorporated in this License, whether by statute, common law or otherwise, is hereby excluded.

10 Intellectual Property Rights

10.1 For the purpose of this clause “Subscriber Data” means any data inputted by the Subscriber, Authorised Users, or Titian on the Subscriber's behalf (including in relation to the Samples) for the purpose of using the Software or facilitating the Subscriber's use of the Software.

10.2 All intellectual property rights arising in any Subscriber Data or Samples created by the Subscriber or Subscriber’s Authorised Users shall belong to the Subscriber.

10.3 The Subscriber acknowledges that all copyright and other intellectual property rights in the Software and in any upgrades, modifications or other amendments to the Software that may be provided to the Subscriber from time to time are owned by and shall remain vested in Titian.

10.4 The Subscriber acknowledges and agrees that Titian and/or its licensors own all intellectual property rights in the Software and Support Services and Installation and Configuration Services. Except as expressly stated herein, this Agreement does not grant the Subscriber any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licenses in respect of the Software and Support Services and Installation and Configuration Services.

10.5 Titian confirms that it has all the rights in relation to the Software and Support Services and Installation and Configuration Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10.6 For the avoidance of doubt, the Subscriber shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement.

10.7The Subscriber acknowledges and consents to Titian and its third party hosting providers using anonymised usage data in order to provide and improve the Services.

11 Data Protection

11.1 For the purpose of this Clause 11, “Data Subject”, “Processor”, “Processing” and “Personal Data” have the meaning set out in the Data Protection Act 1998, or, from the date it comes into force in the UK, the General Data Protection Regulation (EU) 2016/679 (as applicable) and any other laws relating to the protection of personal data and the privacy of individuals (“Data Protection Legislation”) in relation to data that are Processed under this Agreement.

11.2 The parties acknowledge that Titian is a Processor acting on behalf of the Subscriber and that, for the purposes of this Agreement the nature/purpose of the Processing is to enable Titian to provide the License, the Installation and Configuration Services (if applicable) and Support Services for the duration of this Agreement.

11.3 The Subscriber hereby consents to Titian transferring the relevant Personal Data to its hosting providers located in the Hosting Region (as specified in the Commercial Terms), provided that the following conditions are fulfilled:

The Subscriber or Titian has provided appropriate safeguards in relation to the transfer;
the data subject has enforceable rights and effective legal remedies;
Titian complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
Titian complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the Personal Data;

11.4 Titian shall comply with its obligations under the Data Protection Legislation and shall, in particular:

Process the Personal Data only to the extent necessary for the purpose of providing the Services and in accordance with any written instructions from the Subscriber and this Clause 11;
implement and maintain appropriate technical and organisational measures in accordance with the Data Protection Legislation to ensure a level of security appropriate to the risks that are presented by such Processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data, taking into account the state of the art, the costs of implementation, the nature, scope, context and purposes of Processing and the likelihood and severity of risk in relation to the rights and freedoms of the Data Subjects;
ensure that any employees or other persons authorised to Process the Personal Data are subject to appropriate obligations of confidentiality;
not engage any third party to carry out its Processing obligations under this Agreement without notifying the Subscriber and procuring by way of a written contract that such third party will, at all times during the engagement, be subject to Processing obligations equivalent to those set out in this Clause 11;
as soon as reasonably possible and without undue delay notify the Subscriber, about any request (including subject access request) or complaint received from Data Subjects without responding to that request (unless authorised to do so by the Subscriber) and assist the Subscriber by technical and organisational measures, insofar as possible, for the fulfilment of the Subscriber’s obligations in respect of such requests and complaints;
notify the Subscriber without undue delay as soon as it becomes aware of any breach in data security;
maintain appropriate records and information in compliance with Data Protection Legislation and on request by the Subscriber, make available such records information necessary to demonstrate Titian’s compliance with this Clause 11 and otherwise permit, and contribute to, audits carried out by the Subscriber (or its authorised representative); and
on termination or expiry of this Agreement, destroy or return (as the Subscriber directs) all Personal Data in its power, possession or control and delete all existing copies of such data except to the extent Titian is required to retain a copy the Personal Data by law.

12 Liability

12.1 Except as expressly and specifically provided in this Agreement:

The Subscriber assumes sole responsibility for results obtained from the use of the Software and Support Services and Installation and Configuration Services by the Subscriber, and for conclusions drawn from such use. Titian shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Titian by the Subscriber in connection with the Software, Support Services and Installation and Configuration Services or any actions taken by Titian at the Subscriber's direction;
all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
the Software and Support Services and Installation and Configuration Services are provided to the Subscriber on an "as is" basis.

12.2 Nothing in this Agreement shall exclude or in any way limit either party’s liability for fraud or fraudulent misrepresentation, or for death or personal injury caused by its negligence, or any other liability to the extent the same may not be excluded or limited as a matter of law.

12.3 Subject to Clauses 12.1, 12.2 and 12.4:

Neither Party shall be liable to the other Party whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
Each Party’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid for the Software during the 12 months immediately preceding the date on which the claim arose.

12.4 Titian’s total liability (whether in contract, tort (including negligence) or otherwise) in respect of any breach of the warranty provided in Clause 9.4, and either party’s liability (whether in contract, tort (including negligence) or otherwise) in respect of any breach of their respective obligations of confidentiality in Clause 6 shall not exceed 500,000 British Pounds (GBP).

12.5 All dates supplied by Titian for the delivery of the Software or the provision of Support Services or Installation and Configuration Services shall be treated as approximate only. Titian shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

13 Indemnity

13.1 The Subscriber shall indemnify Titian against third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) (“Losses”) arising out of or in connection with the Subscriber's use of the Software or Support Services or Installation and Configuration Services (except insofar as such Losses arise as a result of Titian’s gross negligence, wilful misconduct, or fraud) provided that:

The Subscriber is given prompt notice of any such claim;
Titian provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber's expense; and
The Subscriber is given sole authority to defend or settle the claim.

13.2 Titian shall indemnify the Subscriber against Losses arising out of or in connection with claims for intellectual property infringement for Subscriber’s use of the Software in accordance with this Agreement.

14 Force Majeure

14.1 Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by any event outside its reasonable control (a “Force Majeure Event”).

14.2 The party claiming the Force Majeure Event shall promptly notify the other in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage.

15 Notices

15.1 All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed duly served if delivered personally or sent by pre-paid registered post (or registered air-mail in the case of an address for service outside the United Kingdom) or by email on confirmation of receipt by addressee to the addressee at the address set out opposite its name in the Commercial Terms or such other address as either party may notify to the other for this purpose from time to time.

15.2 Any notice shall be deemed to have been duly served:

if delivered by hand, on delivery;
if sent by pre-paid registered mail, two working days after posting;
if sent by registered air-mail, five working days after posting;
if sent by email, on confirmation of receipt,

and in proving the service of any notice it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post.

16 Dispute Resolution

16.1 If any dispute arises in connection with this Agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within 14 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.

16.2 If the dispute is not wholly resolved at that meeting, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (”ADR notice”) to the other party to the dispute, referring the dispute to mediation. A copy of the request should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice.

16.3 No party may commence any court proceedings/arbitration in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.

17 General

17.1 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party's right later to enforce or to exercise it.

17.2 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this License and shall in no way affect the legality, validity or enforceability of the remaining terms.

17.3 The agreement comprises the Commercial Terms, the Terms and Conditions and any Schedules to it (the “Agreement”), and contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement.

17.4 The parties shall, at the requesting party's reasonable expense, do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by this Agreement.

17.5 No variations shall be made to this Agreement without the prior written consent of both parties. Where any changes are requested, Titian shall be entitled to revise any agreed fees to take into account the consequences of any such proposed change.

18 Law and Jurisdiction

18.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales for the resolution of any disputes arising between them.

SCHEDULE 1

Support and Maintenance Services

1 DEFINITIONS

“Subscriber Contact” means the agreed person(s) from the Subscriber that will be raising support issues to Titian.

“Support Portal” means the issue logging and tracking mechanism that Titian shall make available to the Subscriber. Titian may change this mechanism at its discretion.

2 SCOPE OF THE SCHEDULE

This Schedule sets out the Support Services that shall be provided under the Agreement.

3 DURATION

The “First Production Date” is the date on which the Software is first used for real business operations using production data (not test data).

Supply of the Support Services by Titian to the Subscriber shall commence on the First Production Date and shall terminate on the Termination Date of the Agreement.

4 TECHNICAL SUPPORT

Titian will provide Technical Support for issues logged in the Support Portal. Titian will provide support using Titian-approved methods for accessing the Subscriber’s computer systems. All Technical Support will be performed remotely as opposed to Titian travelling to the Subscriber’s site.

4.1 General

“Technical Support” is defined as follows:

Providing help, advice and guidance in the use of the Software (where no fault exists with the Software).
Providing help, advice and guidance on workarounds (including manual data fixing) for operational issues caused by faults with the Software that have yet to be resolved.
Providing initial help, advice and guidance on workarounds (including manual data fixing) for problems caused by user error by the Subscriber. In these cases, Titian will only provide initial support and diagnosis for the problem and will explain how to avoid making the error, but will not continue to provide support if the Subscriber repeats the error on an ongoing basis.

4.2 Diagnosis of Errors Caused by Software and Hardware Not Supplied by Titian

Titian’s Software has interfaces with other software and hardware systems, and it is possible that a fault in another system may manifest itself as an error in the operation of the Titian Software.

Titian will provide Technical Support to assist the Subscriber in the diagnosis of errors originating in the non-Titian system (meaning software or hardware supplied by Subscriber or a third party), when such errors impact upon the acceptable functioning of the Software. This Schedule includes only reasonable assistance in the diagnosis of the error caused by the non-Titian system. Resolution of errors in non-Titian systems is outside the scope of this Schedule.

Titian will not be responsible for communication with any third party with respect to such errors. Titian may supply available technical detail to the Subscriber that will help in resolution of such errors.

If the Subscriber requests technical support in excess of the foregoing related to non-Titian systems, this shall be treated as a request for Additional Support Services.

Titian shall not be responsible for the Software not functioning in accordance with applicable specifications to the extent caused by non-Titian systems.

4.3 Fair use policy for Technical Support

The Technical Support is intended for ad hoc help and advice regarding real operational issues. Hypothetical questions, and Training, are outside the scope of Technical Support.
Titian will not continue to provide ongoing support for issues caused by user error once initial assistance has been provided for such errors and Titian has explained to the Subscriber Contacts how to avoid making such errors.
The Technical Support is intended to maintain the existing software in its current configuration in good working order to support the current business processes. Configuration changes (for example to add a new workflow or module or instrument) are outside the scope.

5 ADDITIONAL SUPPORT SERVICES

The Subscriber may request additional support services (“Additional Support Services”) to those set out in this Schedule by raising a request (“Service Request”) using the Support Portal. Such Additional Support Services will be subject to the Subscriber paying a fee, which shall be agreed between the parties once the Service Request has been evaluated by Titian.

6 SOFTWARE MAINTENANCE

6.1 New Releases of the Software

As and when Titian creates a new release of the Software, the Subscriber will be entitled to this new release of the Software.

Entitlement to new releases does not entitle the Subscriber to additional software modules that have been added to Titian’s product range. Where a new release includes significant additional features or functionality, Titian may charge an additional upgrade fee. In this case Titian will always offer the Subscriber the option to receive the new release with the additional features disabled and with no additional upgrade fee being payable.

This Schedule does not include Titian’s services to perform any required testing of the Subscriber’s new release of the Software. On-site and/or remote testing services are available as Additional Support Services, if needed by the Subscriber.

Titian will not provide installation support for more than 1 release in any 12-month period.

The Subscriber is not obliged to install every new release of the Software. Provided the installed version of the Software has a release date no earlier than 60 months prior, Subscriber may choose to continue using a non-current release and shall not be required to pay additional fees for using such non-current version.

6.1.1 Compatibility with Third Party Software

Titian shall ensure that any new releases of the Software provided to the Subscriber shall be compatible with current, supported versions of the following third party software: Microsoft Internet Explorer; Microsoft Excel; Microsoft Windows; Google Chrome.

6.1.2 Documentation of New Releases

Titian will publish all revisions to the Software documentation relating to the new release on the Support Portal. The Subscriber has the right to reproduce the documentation for internal use only.

6.2 Patches to the Software

Titian shall make reasonable efforts to correct significant errors, defects or faults reported by the Subscriber.

7 EXCLUSIONS

Titian will not, under the terms of this Schedule, provide Maintenance Services, Technical Support or Additional Support Services where:

The Software has been modified via the source code or the database configuration or otherwise by the Subscriber without the prior written consent of an authorised Titian representative.
The release date of the version of the Software is more than 60 months prior.

8 CONTACT PROCEDURE

Titian mandates that at most three (3) people are designated as Subscriber Contacts for each Subscriber site.

Titian will only respond to requests for support from the Subscriber Contacts.

Titian will provide access to the Support Portal to allow the Subscriber to report faults and to request additional services. Titian will not, under any circumstance, use the Subscriber’s own internal issue tracking systems or mechanisms.

8.1 Technical Support Working Day

The Support and Maintenance Services will be available during the “Technical Support Working Day” stated in the Commercial Terms.

8.2 Initial Contact

All support issues must be reported via the Support Portal. The Subscriber Contact will be required to supply necessary information regarding the circumstances leading to the fault, such as:

An accurate description of the problem.
Any relevant error log or trace log information recorded by the software
The series of steps followed which caused the error/warning message to be displayed.
The impact of the problem on the application and its users (Priority)

Where more information is required, Titian will request this from the Subscriber via the Support Portal.

8.3 Business Impact, Response and Resolution Times

All times for response and resolution defined in the table below are quoted in terms of the time elapsed during the Technical Support Working Day, excluding any time when Titian is waiting on action or information from the Subscriber.

Priority	Business impact	Initial Response Time	Resolution/ Workaround Time
1	Business is very severely impacted	1 hour	9 hours
2	Business is significantly impacted.	2 hours	18 hours
3	Business is not significantly impacted.	4 hours	36 hours
4	Cosmetic / Suggestions, no business impact	Not applicable	Not applicable

The Initial Response Time is the period of time between the Subscriber reporting a support issue and the first contact by a member of the Titian support team.

The Resolution/Workaround Time is the period of time between the Subscriber reporting a support issue and Titian either providing an acceptable resolution or workaround to the error which allows the Subscriber to operate the Software without substantial degradation in performance; or Titian demonstrating that the fault lies with a system supplied by the Subscriber or their 3rd parties.

Permanent resolutions to some issues may require code changes in the Software. These will be provided at Titian’s discretion in patches or future releases.

8.4 Escalation Procedure

In the event that the Subscriber is not satisfied with progress relating to a reported support issue, they may request an escalation. The Subscriber Contact should notify Titian Support of a request to escalate an issue.

The first point of escalation is to the Primary Support Engineer.