1. DEFINITIONS

In this Agreement, unless the context requires otherwise, the following expressions shall have the following meanings:

1.1 "Agreement" means these Standard Terms and Conditions for the Provision of Consultancy Services;

1.2 "Bespoke Software Development" means the supply by eightsquared of Information Technology services for the conception, creation and/or development of software or the like that is specific to the Customer's requirement (for example, without limitation, web-site development, new software etc.), as opposed to the supply of third party produced software which is specifically excluded from this Agreement, and "Bespoke Software" shall be construed accordingly;

1.3 "Confidential Information" means all information, whether provided in writing or orally, and disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party"), or to any employee or sub-contractor of the Receiving Party (the "Recipient"), whether before or after the date of the Agreement, including, without limitation, any information relating to the Disclosing Party's customers, products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunity and business affairs;

1.4 "Consultancy Services" shall mean any information technology related services that are detailed in the Order but excludes the sale and supply of hardware, sale and licensing of software, provision of Managed Services, supply of maintenance and/or support and the provision of Bespoke Software Development;

1.5 "Customer" means the person, firm or company whose details are set out in the Order;

1.6 "Delivery Date" means the estimated date of commencement of the Consultancy Services which will be recorded in the Order;

1.7 "Intellectual Property" means patents, trade marks (registered and unregistered), utility models, all components of copyright (including rights of transcription, distribution, publishing and moral rights) and other exclusive rights of utilisation, rights in service marks, get-up, logos, designs (whether registered or unregistered) and inventions, trade and business names, rights in goodwill or reputation, database rights (including extraction and re-utilisation rights), rights in compilations, any rights similar to any of the above that come into existence (whether by introduction of a new right through legislation or by some other means), applications for any such rights and interests in any of the above and all rights or forms of protection of a similar nature to any of the above or having equivalent effect anywhere in the world;

1.8 "Managed Services" shall mean the services offered by eightsquared pursuant to eightsquared Managed Services Terms and Conditions. Further details can be obtained from legal@eightsquared.co.uk;

1.9 "eightsquared" shall mean www.eightsquared.co.uk;

1.10 "eightsquared Company" means eightsquared and any body corporate which is from time to time: (i) a subsidiary of eightsquared; or (ii) a holding company or a subsidiary of a holding company of eightsquared;

1.11 "Price" means the price for the provision of Consultancy Services or the provision of Bespoke Software Development contained in the Order;

1.12 "Order" shall mean the schedule in the form attached to this Agreement, which upon completion and signature by both parties shall, together with this Agreement, form the Contract between the Customer and eightsquared. Should any terms and/or condition included in the Order conflict with any term and/or condition in this Agreement the term and/or condition in the Order shall take precedence to the extent a conflict exists. Each Order shall be identifiable by a unique Order Number;

1.13 In this Agreement references to:
1.13.1 persons include bodies corporate, incorporated associations and partnerships;
1.13.2 Clauses are to clauses of this Agreement;
1.13.3 a "subsidiary" or "holding company" shall be construed in accordance with Sections 736 and 736A of the Companies Act 1985; and
1.13.4 any statutory provision shall include reference to a statutory provision as modified or re-enacted or both from time to time whether before or after the date of this Agreement.

1.14 The headings in this Agreement shall not affect the interpretation of this Agreement.

2. Specifications

All performance data and other technical information relating to the Consultancy Services are given by eightsquared in the belief that they are reasonably accurate. eightsquared accepts no responsibility whatsoever for any such information which has been prepared by a third party.

3. Service Estimates

3.1 At the Customer's request, eightsquared may provide in the Order an estimate of charges for any Consultancy Services. Unless explicitly stated, such estimate shall not be binding on eightsquared or convert the Contract to a fixed price contract in respect of such Consultancy Services.

3.2 If eightsquared determines (at its sole discretion), that any estimate will be materially exceeded, it shall, within a reasonable period of time, notify the Customer. In such event, the Customer may elect to terminate the Consultancy Services upon 14 days notice.

3.3 Where the Order provides that the Consultancy Services shall be performed for a fixed price, this Agreement and/or the Services Schedule may not be terminated by the Customer before completion of the Consultancy Services except pursuant to Clause 6.2 of this Agreement.

3.4 Should the Customer terminate this Agreement in breach of Clause 3.3, then the Customer shall be liable to pay eightsquared by way of liquidated damages a sum equal to 50% of the anticipated cumulative billings which but for such termination would have been payable by the Customer up until the earliest time when the Customer was contractually entitled to terminate the Agreement. The Customer acknowledges that this sum is a genuine pre-estimate of the loss that eightsquared would suffer;

3.5 The Customer shall pay or reimburse to eightsquared (on production of vouchers and/or other evidence) all reasonable and proper expenses incurred in connection with the provision of the Consultancy Services including but not limited to travel and accommodation expenses. Car mileage allowances will be payable by the Customer to eightsquared in accordance with AA guidelines;

3.6 Each Order shall designate a Project Manager for the Customer and a Project Manager for eightsquared who shall each be responsible for directing the specific activities of their respective employees and shall have sufficient authority to represent the Customer and eightsquared respectively on all technical, administrative and supervisory matters arising in connection with the performance of the respective Consultancy Services. Either party may replace its Project Manager upon reasonable notice to the other party, provided such replacement has the appropriate skills, knowledge and expertise to perform the role.

4. Intellectual Property Rights and Indemnity

4.1 All Intellectual Property created or developed during the supply of the Consultancy Services will remain the property of eightsquared.

4.2 On payment in full for the Consultancy Services to be paid under the relevant Order, the Customer will be granted a non-exclusive and non-transferable, royalty-free licence to use the product of such Consultancy Services and any associated documentation in accordance with these terms and conditions. eightsquared will be entitled to terminate the licence forthwith, should the Customer breach the terms of this Agreement, the Order and/or any licence granted hereunder. No sub-licences may be granted without eightsquared's prior written consent.

4.3 Unless stated otherwise in the Order, all Intellectual Property created or developed during the Bespoke Software Development will remain the property of eightsquared.

4.4 On payment in full for the Bespoke Software Development to be paid under the relevant Order, the Customer will be granted a non-exclusive and non-transferable, royalty-free licence to use the Bespoke Software and any associated documentation in accordance with these terms and conditions. eightsquared will be entitled to terminate the licence forthwith, should the Customer breach the terms of this Agreement or the particular Order. No sub-licences may be granted without eightsquared's prior written consent.

4.5 eightsquared will defend, at its own expense, any legal action brought against the Customer to the extent that it is based on a claim that the Consultancy Services or any Bespoke Software (or any part thereof), when used in accordance with any documentation that accompanies the Consultancy Services or Bespoke Software, infringes a copyright of a third party, and eightsquared will pay any final judgement awarded to the third party against the Customer PROVIDED THAT: Customer shall (i) notify eightsquared promptly in writing of any such claim; (ii) permit eightsquared to have sole control of the defence, compromise or settlement of such claim, including any appeals; (iii) not make any prejudicial statements or settlement offers without the prior written consent of eightsquared; and (iv) fully co-operate with eightsquared in the defence or settlement of such claim. eightsquared will pay such reasonable costs, damages or fees incurred by Customer in connection with such action or claim.

4.6 Should the Bespoke Software and/or the Consultancy Services become, or in eightsquared's opinion be likely to become, the subject of any such infringement claim, Customer shall permit eightsquared, at eightsquared's option and expense, to (i) procure for Customer the right to continue using the Bespoke Software or the Consultancy Services, or (ii) replace or modify the Bespoke Software or the Consultancy Services so that they become non-infringing, or (iii) terminate the right to use the Bespoke Software or the Consultancy Services, upon which termination Customer shall, and shall procure that End Users, promptly destroy all copies of the Bespoke Software or the Consultancy Services and certify the same to eightsquared.

4.7 eightsquared shall have no liability for any Intellectual Property infringement claim to the extent that it is based on (i) the use or combination of the Bespoke Software with software, hardware or other materials not recommended by eightsquared, provided such infringement would not have arisen but for such use or combination; or (ii) the use of the Bespoke software in a manner other than that for which it was designed or contemplated as evidenced by eightsquared's documentation; or (iii) any unauthorized modification of the Bespoke Software or Consultancy Services by any party; or (iv) any compliance with designs, plans or specifications furnished by Customer. This section states the entire liability of eightsquared, and Customer's sole and exclusive remedy, with respect to infringement of any Intellectual Property rights, and eightsquared shall have no additional liability with respect to any alleged or proved infringement.

5. PRICE AND PAYMENT

5.1 The Customer shall pay to eightsquared the Price as invoiced.

5.2 Unless otherwise stated in an Order, all valid invoices issued to the Customer shall be payable within 30 days of the date of issue and shall be submitted monthly in arrears. The Customer shall not be permitted to make any deduction from the Price whether in respect of set-off, counterclaim or otherwise.

5.3 The Price, and any additional charges payable hereunder, are exclusive of VAT, customs charges and duties, which shall be paid by the Customer in the amount and manner prescribed by law if applicable.

5.4 eightsquared may charge interest at the rate of 4% above Royal Bank of Scotland's Base Rate from the due date until the date of payment, whether before or after judgement, on any unpaid sum due from the Customer to eightsquared under this Agreement or Order.

5.5 Without prejudice to any of its other rights, eightsquared shall be entitled to suspend its obligations under this Agreement or an Order for so long as any payment due there under remains outstanding.

6. TERMINATION

6.1 Otherwise than as may be provided in relation to the Services, either party may terminate this Agreement or an Order by giving no less than 90 days notice in writing to the other.

6.2 Either party ("Initiating Party") may terminate this Agreement at any time forthwith by notice in writing if:

6.2.1 the other party (the "Breaching Party") is in material breach of any of its material obligations under this Agreement and (if the breach is capable of remedy) fails to remedy the breach within 30 days after receipt of notice in writing from the Initiating Party giving particulars of the breach and requiring the Breaching Party to do so;

6.2.2 a resolution is passed or an order is made for the winding-up (or equivalent order in the relevant jurisdiction) of the other party otherwise than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction and in such manner that the entity resulting from the amalgamation or reconstruction effectively agrees to be bound by or assume the obligations imposed on the other party under this Agreement; or

6.2.3 the other party becomes subject to an administration order; a liquidator, receiver or administrative receiver or similar is appointed over, or an encumbrancer takes possession of, any of the other party's property or assets; the other party enters into an arrangement or composition with its creditors; the other party ceases or threatens to cease to carry on business; the other party becomes insolvent; or the other party ceases to be able to pay its debts as they fall due.

6.3 eightsquared shall be entitled to immediately terminate any licence granted under Clause 4.2 on the occurrence of any of the circumstances detailed in Clauses 6.2.2 and 6.2.3.

7. EFFECTS OF TERMINATION

7.1 Any termination of this Agreement (howsoever occasioned) or a Order shall not affect any accrued rights or liabilities of either party which have arisen on or before the date this Agreement or a Order terminates, nor shall it affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.

7.2 Unless terminated pursuant to Clause 6.2, the licence to use the Bespoke Software contained in Clause 4.4 shall survive any termination of this Agreement.

7. 3 The following Clauses shall survive termination of this Agreement: 1, 2, 4, 5, 7, 9, 10, 15 and 19.

8. ASSIGNMENT AND SUBCONTRACTING

8.1 Neither party shall be entitled to assign this Agreement nor any Order to any other party without the other party's express written consent. However, eightsquared shall be entitled to assign this Agreement to any eightsquared Company. The Customer will be informed of any such assignment.

8.2 eightsquared shall be entitled to sub-contract the supply of the Consultancy Services or the provision of Bespoke Software Development to any third party that it deems is appropriately skilled to provide the same, although eightsquared shall remain primarily liable to the Customer notwithstanding the use of such subcontractors.

9. CONFIDENTIALITY

9.1 During the term of this Agreement and after the termination or expiry of this Agreement for any reason whatsoever the Receiving Party shall:
9.1.1 keep the Confidential Information confidential;
9.1.2 not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 9.2, 9.3 and 9.4; and
9.1.3 not use the Confidential Information for any purpose other than the performance of its obligations under this Agreement.

9.2 During the term of this Agreement the Receiving Party may disclose the Confidential Information to its Recipients to the extent that it is necessary for the purposes of this Agreement.

9.3 The Receiving Party shall use all reasonable endeavours to ensure that each Recipient is made aware of and complies with all the Receiving Party's obligations of confidentiality under this Agreement as if the Recipient were a party hereto.

9.4 The obligations contained in Clauses 9.1 to 9.3 shall not apply to any Confidential Information which:
9.4.1 is at the date of this Agreement in, or at any time after the date of this Agreement comes into, the public domain other than through a breach of this Agreement by the Receiving Party or any Recipient;
9.4.2 can be shown by the Receiving Party to the satisfaction of the Disclosing Party to have been known to the Receiving Party prior to it being disclosed by the Disclosing Party to the Receiving Party;
9.4.3 subsequently comes lawfully into the possession of the Receiving Party from a third party; or

9.4.4 is otherwise disclosed through process of law.
9.5 No public announcements concerning the existence or contents of this Agreement shall be made by either party without the prior written consent of the other party.

10. LIABILITIES AND INDEMNITIES

10.1 Neither party shall, nor shall they purport to, exclude or restrict liability for death or personal injury resulting from the negligence of that party or its employees, servants or agents acting in the course of their employment.

10.2 Save as expressly set out herein, all conditions, warranties and obligations which may be implied or incorporated into this Agreement by statute, common law, or otherwise, including those in respect of satisfactory quality and fitness for purpose, and any liabilities arising there from, are hereby excluded.

10.3 Other than in respect of Clause 10.1, neither party shall in any circumstances be liable to the other for loss of profits, business or contracts or any other indirect or consequential loss caused in any way by some act, omission, or misrepresentation (excluding any fraudulent or negligent misrepresentation) committed in connection with this Agreement (whether arising from negligence, breach of contract or howsoever), even if such loss was reasonably foreseeable or if one party had advised the other of the possibility of such loss.

10.4 Other than in respect of Clause 10.1, the total aggregate liability of one party to the other from any cause relating to or arising out of this Agreement, regardless of the form of action whether in contract, tort or otherwise, will not, in respect of the Consultancy Services and/or Bespoke Software Development or the resulting Bespoke Software shall not exceed the Price paid by the Customer.

10.5 Other than in respect of Clause 10.1, neither party shall have any liability to the other in any respect unless it shall have served notice of the same on the other party within 12 months of the date on which it became aware of the circumstances giving rise to any such claim or the date when it ought reasonably to have become so aware.

10.6 Each provision of this Clause 10, limiting or excluding liability, operates separately and shall survive independently of the other provisions and the invalidity, illegality or unenforceability of any provision of this Clause 10 shall not affect or impact the continuation in force of the remainder of this Agreement.

11. WARRANTIES

11.1 eightsquared warrants that:
11.1.1 it will carry out all aspects of the Consultancy Services and any Bespoke Software Development with reasonable skill and care and to generally accepted industry standards;
11.1.2 the Consultancy Services or Bespoke Software will, for a period of 30 days from the date of acceptance, conform to, and operate in accordance with any specification provided by Eightsquared;
11.1.3 it has the right and authority to enter into this Agreement.

11.2 Customer's sole remedy in relation to any breach of any of the above warranties during the warranty period (i.e. 30 days from the date of Acceptance) shall be that eightsquared shall perform, at its sole expense, all rectification services necessary to render the Consultancy Services or Bespoke Software compliant with the above warranties.

11.3 Except as expressly set out in this Agreement (as amended by any Order), all conditions, warranties, representations, terms and undertakings including any and all implied warranties or conditions of satisfactory quality or fitness or suitability for any purpose (whether or not the warranting party knows, has reason to know, has been advised or is otherwise aware of such purpose) which could otherwise be incorporated into this Contract by way of statute, common law or otherwise are hereby excluded to the maximum extent permissible by law.

12. VARIATIONS

12.1 Customer shall be entitled at any time prior to completion of the Consultancy Services or Bespoke Software to request that eightsquared modify any aspect of the scope of such Consultancy Services or Bespoke Software.

12.2 Customer shall provide eightsquared with full particulars of any requested modification and such further information as eightsquared may reasonably require. Within 14 days of receipt of such request eightsquared shall inform Customer in writing of the alterations to any timeframe that may have been agreed for completion of the Consultancy Services or Bespoke Software Development (if any) and any additional prices payable to implement such modification. For the avoidance of doubt, the Price originally payable for the Consultancy Services or Bespoke Software Development Customer shall not be reduced because of a request for modification.

12.3 If Customer elects to proceed with such modification then the timeframe and prices payable shall be amended as indicated by eightsquared pursuant to Clause 12.2 above and accepted by the Customer in writing.

13. PERSONNEL

13.1 eightsquared shall use all its reasonable endeavours to avoid replacing the personnel assigned to perform the Consultancy Services or Bespoke Software Development during the currency of the Order. However, in the event of replacement being necessary or desirable, eightsquared shall replace such personnel with personnel of commensurate skill and expertise. Nothing in this clause shall relieve eightsquared of any of its obligations or its responsibilities for any acts or omissions of its personnel under this Agreement.

14. FORCE MAJEURE

14.1 Save for the obligations in Clauses 3 and 5, neither party shall be liable for failure to perform its obligations under this Agreement if such failure results from circumstances beyond that party's reasonable control including but not limited to strikes, lock-outs, labour disputes, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood or storm ("Event of Force Majeure").

14.2 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.

15. NON-SOLICITATION

15.1 During the term of this Agreement and, should the Agreement terminate, for a period of 12 months from the date of the last Order, neither party will employ or solicit for employment any member of the other's then current personnel connected with the performance of this Agreement.

15.2 In respect of any breach by either party of Clause 15.1, both parties understand and agree that damages would be an inadequate remedy and further acknowledge the right of the aggrieved party to be entitled to injunctive relief.

16. GENERAL

16.1 No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties by a duly authorised officer of each of the parties.

16.2 The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy. The rights and remedies contained in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.

16.3 The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect or impact the continuation in force of the remainder of this Agreement.

16.4 Nothing in this Agreement shall be construed as creating a partnership or joint venture of any kind between the parties or as constituting either party as the agent of the other party for any purpose whatsoever and neither party shall have the authority or power to bind the other party, or to contract in the name of, or to create a liability against, the other party in any way or for any purpose.

17. ENTIRE AGREEMENT

17.1 This Agreement (as amended from time to time), together with any document expressly referred to in any of its terms, contains the entire agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement.

17.2 The Customer confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly in this Agreement been made a representation and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement, save that the agreement of the Customer contained in this Clause 17.2 shall not apply in respect of any fraudulent or negligent misrepresentation, whether or not such has become a term of this Agreement.

17.3 The parties agree that the provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

18. NOTICES

18.1 Any notice under or in connection with this Agreement shall be in writing and shall be delivered personally or sent by recorded delivery or email to the address of the party set out in this Agreement or to any other person or address subsequently notified by one party to the other.

18.2 In the absence of evidence of earlier receipt any notice shall be deemed to be duly given:
18.2.1 if delivered personally when left at the address referred to in the Order; or
18.2.2 if sent by recorded delivery three (3) days after posting it;
18.2.3 if sent by email, when received.

19. GOVERNING LAW

This Agreement and any Order agreed hereunder shall be governed by, and construed in accordance with, the laws of England and Wales and the Customer agrees to submit to the exclusive jurisdiction of the English courts.