Yoolaa a division of e-Advantage Solutions Ltd (Yoolaa), of 4 Julian Court, Wilmot Road, Shoreham By Sea, BN43 6NG, provides the Yoolaa Business Management system on a monthly subscription basis or optionally for specific periods.

 

The monthly subscription may be cancelled by the client without notice and in such circumstances the client’s data, at no further charge, can be supplied as an .mdf format file so that they can retrieve their accumulated data. The service is also available on twenty-four month contract, which is extended automatically.

 

Yoolaa warrants that the server is available 365 days per year, 24 hours per day with a system availability of 99.9% up-time and response times for application transactions of no more than two seconds. This may be constrained by the size of attachments. Similarly where a “document” contains multiple files. In the event that the system (over a period of three months) is available for less than 99.9% of the time the client will be refunded the monthly fee pro-rata for the time lost. 

 

Yoolaa warrants that the software is to all intents and purposes error free, though recognises that some operating system software and communications facilities may cause interruptions. When entering data if the “Apply” button has been pressed and the screen refreshed then the data is in the database. If anything fails at this moment, check that the data has been lodged or otherwise re-enter.

 

Yoolaa warrants that they provide a backup of each client’s database updated every night to a remote location. The back-ups take place correctly even if the database is open and in use.

 

Yoolaa will provide sufficient bandwidth for communications and will monitor and progressively upgrade the communications structure.

 

Yoolaa is entitled to vary the monthly subscription fee not more than once in every successive period of 12 months upon giving not less than 90 days notice thereof to the client.

 

Yoolaa warrants that each client’s data is private and confidential and under no circumstances will it ever be used by anyone other than the client. As part of its consultancy services Yoolaa is able to set up internal security so as to limit access by each client’s users to specific authorised areas of data, only as instructed by the client.

 

The client agrees to pay the relevant monthly subscription fourteen days before the start of each monthly renewal, and to provide at least the minimum PC system (Macintosh computers have been excluded at present) configured Intel Pentium 2 or later with minimum of 32mb RAM, (preferably 512Mb RAM); MS Explorer IE6; MS Outlook, not Outlook Express.

 

The client’s system is made available for their use within seven days of the completed standing order being received by Yoolaa. The client shall pay all sums due without any set-off, withholding or deduction whatsoever.

 

The client agrees to test that the queries, alerts and reports are working correctly to his requirements. Yoolaa takes no responsibility for actual or consequential costs or losses of whatsoever nature where the software is being used incorrectly or wrongful data is entered.

 

The client agrees to abide by the terms of the software licence.

 

The client agrees to pay in accordance with Yoolaa normal terms and conditions for consultancy, business process definition, training, personalisation services and any software and hardware additionally required. If not settled by the due date(s) this causes the suspension and then the termination of the monthly ASP subscription service. 

 

Yoolaa shall provide the support for this subscription service. Support may comprise all or any of the following categories and may be shown on a supplemental contract: Training (in the use of the software, hardware and/or third party software); Installation of additional hardware and software; Upon request of the client, the diagnosis of faults in the software and the correction or work-around of such faults (remotely or by attendance on site) by the issue of fixes in respect of the software and the making of the consequential changes to the documentation; The creation and installation from time to time at Yoolaa’s sole discretion of fixes or New Releases.

 

Support shall not include the diagnosis and correction of any fault resulting from improper use or neglect; or the use of the service on any other hardware than as specified; or the modification of the software or their merger (in whole or in part) with any other software; the failure to implement recommendations advised by the Yoolaa; any repair, adjustment, alteration or modification by any person other than the Yoolaa without their prior consent.

 

Unless otherwise agreed support will be available during normal UK business hours, namely 0900 to 1700, Monday to Friday excluding Public Holidays. The client will supply in writing a detailed description of any fault requiring correction and the circumstances under which it arose forthwith upon becoming aware of the same.

 

PROPERTY AND CONFIDENTIALITY IN LICENSED MATERIALS

 

The Licensed Materials contain confidential information of Yoolaa and all copyright, trade and service marks or names, database rights, design rights and other intellectual property rights ("Intellectual Property Rights") in the Licensed Materials are and remain the exclusive property of the Yoolaa and other third party suppliers.

 

The Client shall not copy the whole or any part of the Licensed Materials; modify merge or combine the whole or any part of the Licensed Materials with any other software or documentation; assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Licensed Materials nor use on behalf of or make available the same to any third party; reverse engineer or de-compile the whole or any part of the Licensed Materials from object code into source code except to the extent required to be permitted by law; or use the Licensed Materials for any purpose other than its own business purposes.

 

The Client shall: keep confidential the Licensed Materials and limit access to the same to those of its employees, agents and sub-contractors who either have a need to know or who are engaged in the use of the Licensed Materials; reproduce on any copy of the Licensed Materials the Yoolaa's copyright and trade mark notices; maintain an up-to-date written record of the number of copies of the Licensed Materials and their location and upon request forthwith produce such record to the Yoolaa; and comply will all of the requirements of licences in respect of Third Party Software.

 

The Client shall inform all relevant employees agents and sub-contractors that the Licensed Materials constitute confidential information of the Yoolaa and that all Intellectual Property Rights therein are the property of the Yoolaa, and the Client shall take all such steps as shall be necessary to ensure compliance by its employees agents and sub-contractors with the provisions of this clause.

 

WARRANTY

 

Yoolaa warrants that: its title to and property in the Software is free and unencumbered and that it has the right to provide the same upon the terms and conditions of this Agreement; the Software functions substantially in accordance with the software test; it will provide Support with reasonable care and skill; Yoolaa shall remedy any breach of the warranties by the provision of Support free of charge except for exclusions above; Yoolaa shall have no liability to remedy a breach of warranty where the software is being used incorrectly or wrongful data is entered; without prejudice to the foregoing the Yoolaa does not warrant that the Deliverables will meet the Client's requirements or that their operation will be uninterrupted or error free. Subject to the foregoing, all conditions, warranties, terms and undertakings, express or implied, statutory or otherwise, in respect of the Deliverables and the provision of the Support are hereby excluded.

 

It is the responsibility of the Client to arrange appropriate maintenance if it is not covered by Support provided under this Agreement, and to use its remedies against third parties in respect of Third Party Software and, where appropriate, Hardware. Yoolaa will use its reasonable endeavours to procure for the Client the benefit of remedies which it has under its agreements with the suppliers of Third Party Software and Hardware, where practicable.

 

LIMITATION OF LIABILITY

 

The following provisions set out the Yoolaa's entire liability to the Client however arising, whether in contract, tort (including negligence) or otherwise. Yoolaa's liability to the Client for death or injury resulting from its own or its employees' agents' or sub-contractors' negligence shall not be limited.

Other than this Yoolaa's entire liability in respect of any event or series of connected events shall be limited to damages of an amount equal to the aggregate of the Fees paid or payable in the immediately preceding period of 12 months ending on the date on which such liability arose; Yoolaa shall not be liable to the Client in respect of any loss of profits, goodwill or any type of special, indirect or consequential loss even if such loss was reasonably foreseeable or Yoolaa had been advised of the possibility of the Client incurring the same and Yoolaa shall have no liability to the Client unless the Client shall have served notice of the same upon Yoolaa within 2 years of the date when it became aware of the circumstances giving rise to the claim or the date when it ought reasonably to have become so aware (whichever is earlier).

 

INTELLECTUAL PROPERTY RIGHTS INDEMNIFIED

 

Yoolaa will indemnify and hold harmless the Client against any damages (including reasonable costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Licensed Materials by the Client infringes the patent, copyright, database right, design right or trade or service mark rights of said third party (an "Intellectual Property Infringement") provided that the Client gives notice to Yoolaa of any Intellectual Property Right Infringement forthwith upon becoming aware of the same; gives the Yoolaa the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the express instructions of the Yoolaa; and acts in accordance with the reasonable instructions of the Yoolaa and gives to the Yoolaa such assistance as it shall reasonably require in respect of the conduct of the said defence. Yoolaa shall reimburse the Client its reasonable costs incurred in complying herewith; Yoolaa shall have no liability to the Client in respect of an Intellectual Property Infringement if the same results from any breach of the Client's obligations under this Agreement. In the event of an Intellectual Property Infringement Yoolaa shall be entitled at its own expense and option either to: procure the right for the Client to continue using the Licensed Materials; or make such alterations or modifications or adjustments to the Licensed Materials that they become non-infringing or replace them with non-infringing substitutes without incurring a material diminution in performance or function; or terminate this Agreement without liability to the Client save under this clause.

 

RISK AND TITLE IN THE DELIVERABLES

No title passes to the client other than the right to use the subscription service providing that all sums due have been paid at the prices then prevailing.

 

CONFIDENTIALITY

 

Each party agrees to keep confidential all information (written or oral) concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement save that which is: at the date of this Agreement or at any time after the date of this Agreement comes into the public domain other than through breach of this Agreement; can be shown by the party receiving the information to the reasonable satisfaction of the other party have been known by it before the disclosure by that other party; subsequently comes lawfully into the possession of the party receiving the information from a third party without restrictions on disclosure; is required to be disclosed by law or competent authority. Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors.

 

DURATION AND TERMINATION

 

The Agreement for the monthly subscription service will continue until terminated as follows: with regard to provision of the service, by either party upon not less than 90 days' written notice to the other; or with regard to Support or in its entirety, forthwith by either party if the other commits any material breach of any term of this Agreement (including the Client's failure to pay any sum due under this Agreement) and which (in the case of a breach capable of being remedied) shall not have been remedied within 15 days of a written request to remedy the same; or with regard to Support or in its entirety, forthwith if the client convenes a meeting of its creditors, or if a proposal is 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 client is unable to pay its debts, 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 client or for the making of an administration order (otherwise than for the purpose of a solvent amalgamation or reconstruction).

 

Any termination of this Agreement shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party or any provision which is intended to come into or continue in force on or after such termination.

Upon termination of this Agreement (howsoever and by whomsoever occasioned unless only in relation to Support) the Client destroy all copies of the Licensed Materials in its possession and a duly authorised officer of the Client shall certify in writing to Yoolaa that the Client has complied with such obligation.

 

FORCE MAJEURE

 

Neither party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but not limited to fires, strikes (of its own or other employees), insurrection or riots, embargos, container shortages, wrecks or delays in transportation, religious or national holidays, inability to obtain supplies and raw materials and requirements or regulations of any civil or military authority (an "Event of Force Majeure"). Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure shall continue for more than 4 weeks then the party not in default shall be entitled to terminate this Agreement.  Neither party shall have any liability to the other in respect of the termination of this Agreement as a result of an Event of Force Majeure.

 

GENERAL

 

The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions, nor shall any delay or omission on the part of either party to exercise any right power or privilege that it has hereunder operate as a waiver of any breach or default by the other party.

Any notice, request, instruction or other document to be given hereunder shall be delivered or sent by email or first class post to the email address or postal address of the other party set out in this Agreement (or as may otherwise have been notified) and any such notice or other document shall be deemed to have been served (if delivered) at the time of delivery, (if sent by post) upon the expiration of 48 hours after posting and (if sent by fax) upon the successful completion of transmission.

 

If any provision of this Agreement shall be found to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement, which shall remain in full force and effect.

 

This Agreement is the entire agreement between the parties relating to the subject matter hereof, and replaces and excludes all previous agreements, representations and other terms.

 

This Agreement shall be binding upon and endure for the benefit of the successors in title of the parties hereto.

 

The Client may not assign this Agreement nor any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the Licensed Materials without the prior consent of Yoolaa. Save insofar as otherwise expressly provided, all amounts stated in this Agreement are expressed exclusive of value added tax, which shall be paid by the Client.

 

This Agreement shall be governed by and construed in accordance with English law and the parties hereto submit to the exclusive jurisdiction of the English courts.