PROGRAMUS LTD TERMS AND CONDITIONS

Programus Australasia Pty Ltd (AUS ABN: 64626121953) (“OPTIMOGOV”) provides access to its software for products or services (“the Services”) purchased through any Order by you (“Customer”).

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY as they govern your use of the Services, and by ordering and providing the Services, you agree to be bound by these Terms. If you are ordering the Services on behalf of an entity, you represent that you have the authority to bind such entity, its successors, assigns, subsidiaries, and its affiliates to these Terms & Conditions, in which case the terms “you” and “Customer” refer to such entity, its successors, assigns, subsidiaries, and affiliates.

NOTICE: COMPETITORS OF MAY NOT ACCESS THE SERVICES WITHOUT OPTIMOGOV PRIOR WRITTEN CONSENT FOR ANY PURPOSE, INCLUDING MONITORING AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR OTHER BENCHMARKING OR COMPETITIVE PURPOSE(S).

These Terms & Conditions are effective between you and OPTIMOGOV as of the date you place an order for the Services. This Agreement shall be fully executed by an authorised signatory for both Customer and OPTIMOGOV and will continue until terminated.

THE PARTIES AGREE TO THE FOLLOWING TERMS AND CONDITIONS

1.        DEFINITIONS AND INTERPRETATION

1.1.    Definitions

In this Agreement, the following terms have these meanings unless stated otherwise.

1.2.    Agreement

means the agreement created between the Client and OPTIMOGOV by this document, and the Client Agreement;

1.3.    Business Day

means any day other than Saturday, Sunday and Australian public holidays;

1.4.    Client Agreement

means the document that specifies the inclusions of the Software.

1.5.    Commencement Date

means the date on which this Agreement is executed by both OPTIMOGOV and Client;

1.6.    Confidential Information

means any information or material (including information or material provided to a party by Third Parties (as defined)), whether in oral, visual or written form or recorded in any other medium, disclosed by a party to, or observed from a party by, the other party, or which is otherwise acquired by one party directly or indirectly from the other party or generated by a party in accordance with this Agreement, which is designated, or treated, by a party as confidential, including, without limitation, the Software Source Code, Object Code, file layouts and interfaces, and Documentation, and all confidential discoveries, ideas, trade secrets, know-how, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, file layouts, documentation, diagrams, flowcharts, processes and procedures, and information pertaining to the business, plans, forecasts, finances and strategies of a party and its clients and suppliers and each of their clients and suppliers;

1.7.    Documentation

means the documentation for and in relation to the Software to be provided to the Client by OPTIMOGOV under this Agreement;

1.8.    Equipment

means equipment which OPTIMOGOV recommends from time to time and which is to be provided by the Client;

1.9.    Event

means a function, meeting, gathering, convention, concert or other similar gathering;

1.10. Fault

means a failure in the normal operation of the Software;

1.11. Fault Response Time

means the period of time between a failure in the normal operation of the Software being reported to OPTIMOGOV by the Client and a response from OPTIMOGOV acknowledging the report and are as specified in Clause 21.

1.12. Fees

means the fees described in the accompanying Client Agreement

1.13. Force Majeure Event

means, for a party, any occurrence or omission as a direct result of which the party is prevented from or delayed in performing any of its obligations under this Agreement (other than the payment of money), and that is beyond the reasonable control of that party, including but not limited to forces of nature, industrial action, and action or inaction by a government agency;

1.14. Installation

means the provision to the Client of access to the Software;

1.15. Intellectual Property Rights

means all industrial and intellectual property rights worldwide, whether protectable by statute, at common law or in equity, and whether or not registered or capable of being registered, including but not limited to:

1.15.1     the entire copyright throughout the world and any similar rights which may subsist or may hereafter subsist in all works, discoveries, designs, drawings, specifications, records, manuals, models, memoranda, technical data, and in particular the Software, its Source Code, Object Code, file layouts and interfaces and the Documentation, and in any other subject matter;

1.15.2     source code and object code, software or hardware products (whether fully developed or in research and development stage);

1.15.3     rights in relation to inventions (including all patents and patent applications);

1.15.4     rights in relation to trade secrets, business concepts and know-how;

1.15.5     rights in relation to designs (whether or not registrable);

1.15.6     rights in relation to registered and unregistered trademarks;

1.15.7     rights in relation to circuit layout designs and circuit layouts;

1.16. OPTIMOGOV Support Desk

means the contact point for Faults, which the Client may log tickets into OPTIMOGOV support portal, contact OPTIMOGOV Support by dialling the number telephone number specified here TBA or Email (Special dedicated number also to be provided as part of this partner agreement)

1.17. Licence

means the licence to use the Software;

1.18. Licensed User

means each person including employees, agents, brokers and non-employees of the Client, who has access to and is licensed to use the Software in accordance with the terms of this Agreement and the relevant Plan;

1.19. Merchant Fee

means all costs of processing merchant transactions, including bank fees and other third-party costs;

1.20. Order form

means the documents signed by Customer or an Affiliate placing an order for the Services, including any addenda or supplements thereto, this also includes any OPTIMOGOV responses and commitments to client’s specifications stipulated in competitive tender process.

1.21. Service Levels

means those set out in Clause 21;

1.22. Software

means OPTIMOGOV software which is to be supplied by OPTIMOGOV to the Client;

1.23. Taxes

means all applicable taxes including, without limitation, excise duties, sales tax, GST, VAT, stamp duties, customs duties, payroll taxes, government duties, charges and fees, other than income tax;

1.24. Term

means the period beginning on the Commencement Date and ending on the termination of this Agreement, or as set out in the Customer Agreement;

1.25. Third-party

means any person or entity, other than OPTIMOGOV, and includes (but is not limited to) any or all of the Client’s related entities, associates, suppliers, contractors, sub-contractors, agents and consultants;

1.26. Third-party Software

means any software which is not created or manufactured by OPTIMOGOV;

2.        ENTIRE AGREEMENT

This Agreement and the other documents that are referenced in this agreement constitutes the entire agreement between you, and OPTIMOGOV regarding your use of the Services. No modification, amendment, or waiver of any provision in this Agreement will be effective unless in writing and signed by the party against whom enforcement is sought.

3.        ORDER

These Terms & Conditions are incorporated by reference into each Order Form submitted by Customer. Together, these Terms and the Order Form comprise a binding agreement between you and OPTIMOGOV effective as of the date specified in the Order Form and only as it pertains to services undertaken pursuant to this specific Order Form and continuing for the term stated in the Order Form. These Terms govern your right to access the Services and use OPTIMOGOV software.

4.        GRANT OF LICENCE

4.1.    OPTIMOGOV grants to the Client a non-exclusive Licence for the Term to use the Software and Documentation for the Purpose, always subject to payment by the Client of all monies to be paid under this Agreement.

4.2.    The Licence to use the Software is non-transferable.

5.        THIRD-PARTY SOFTWARE

5.1.    The Client acknowledges and agrees that Third-party Software may be required, and those fees are not specified in this Agreement—for example, Payment Service Provider fees and so on.

5.2.    Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations, whether express, implied, statutory or otherwise relating in any way to the Third-party Software are excluded. Without limiting the generality of the preceding sentence, OPTIMOGOV shall not be under any liability to the Client in respect of any loss or damage (including consequential loss or damage) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of any error or defect in or failure of, any Third-party Software.

6.        LICENSED USE

6.1.    Licensed Users

Master licence – The Licence applies only to and only permits use by the Licensed Users.

6.2.    Prohibited Use

Unless otherwise permitted by this Agreement, the Client must not:

• reverse-engineer or attempt to reverse-engineer the Software or any part of the Software;
• attach, operate or otherwise interface any third-party software (other than the Software) with the Software and/or the Equipment without the prior written consent of OPTIMOGOV, which consent may be given or withheld by OPTIMOGOV (including the imposition of terms) in OPTIMOGOV’s sole discretion but such consent will not be unreasonably withheld provided OPTIMOGOV is satisfied that its Intellectual Property Rights are protected. For clarity, OPTIMOGOV hereby consents and shall support in all commercially reasonable manners to interfacing Client’s proprietary software with the Software.

7.        PROPRIETARY RIGHTS

7.1.    No Transfer of Rights

The Client:

• acknowledges that the Licence does not involve the transfer to it of any proprietary rights in the Software; and
• to the extent applicable to Client’s use, will take all reasonable steps within its control to assist OPTIMOGOV in its efforts to protect OPTIMOGOV Intellectual Property Rights in the Software.
• For clarity, Client shall retain all ownership and intellectual property rights in and to all technology built by Client which integrates with OPTIMOGOV during the term hereof.

8.        INVESTIGATION OF FAULTS

8.1.    OPTIMOGOV will analyse the cause of the suspected Fault and determine if the suspected Fault is a Fault and, if so, will issue the Client a Fault reference number.

8.2.    OPTIMOGOV will use its best efforts to meet the Fault Response Times.

8.3.    OPTIMOGOV will not provide Fault rectification or restoration under this Agreement where the cause of the Fault is a result of Client’s actions or omissions.

9.        INVOICING, PAYMENT and TERMS

9.1.    Increases

OPTIMOGOV shall not vary charges set out in the commercial proposal of this agreement during the term of this Agreement.

9.2.    Payment Terms

OPTIMOGOV shall levy the fees following the payment terms set in the commercial proposal of this agreement. All charges shall be payable by Client within 30 days from receipt of an invoice.

9.3.    Late Payments

OPTIMOGOV reserves the right to charge the Client interest in respect of the late payment of any charges due under this Agreement. The interest will be 3% per annum above the national base rate from time to time from the due date until payment (as well after as before any judgement).

9.4.    Currency and Taxes

All charges and prices quoted in this agreement are in AUD (Australian Dollars) and are exclusive of Taxes and Duties.

9.5.    Client Requirements

The Client shall be responsible to ensure that sufficient staff and third-party software is ready and available to enable OPTIMOGOV to carry out required tasks regarding the Software, including without limitation installations and upgrades. Should a remote service or a site visit take place and pre-visit requirements are not ready, and therefore the remote service or site visit must be re-scheduled, at OPTIMOGOV’s option, this will incur the full cost of a remote service call or an on-site visit. Should there be connectivity or system issues that need to be resolved at the site during the installation of, upgrading or other work involving the Software, these will be highlighted, and additional work can be discussed at an appropriate time (provided such issues are not a result of OPTIMOGOV having provided an incorrect Recommended System Specification or any other fault of OPTIMOGOV).

9.6.    Hardware

No hardware cost is included in this agreement.

10.     INTELLECTUAL PROPERTY

10.1. Intellectual Property Rights

The Client acknowledges that all Intellectual Property Rights in OPTIMOGOV’s Confidential Information, the Software and the Documentation, and in any enhancement, or modification of the Software or the Documentation, and in any other material proprietary to OPTIMOGOV, vest expletively in OPTIMOGOV, and that the Client will not infringe OPTIMOGOV’s Intellectual Property Rights, nor seek to exploit or use any such material for its own purposes other than as set out in this Agreement.

10.2. Acknowledgment

The Client acknowledges that:

10.2.1. all Intellectual Property Rights in OPTIMOGOV’s Confidential Information, the Software, the Documentation, in any other material proprietary to OPTIMOGOV, and in any enhancement or modification of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement are and remain the property of OPTIMOGOV, and the Client acquires no right or interest (except for the Licence in such property); and

• following the expiry of the Term or earlier termination of this Agreement:
• the Client has no right or entitlement to use the Intellectual Property Rights of OPTIMOGOV referred to in Clause 10.2.1;
• OPTIMOGOV is not obliged to provide any maintenance services to the Client with respect to the Software, the Documentation, any other material proprietary to OPTIMOGOV, and any enhancement, modification or Customisation of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement; and
• the Client’s access to the Software will cease immediately.

10.3. Acknowledgement by OPTIMOGOV

OPTIMOGOV acknowledges that the Client is given access to the Software and Documentation and other things in which OPTIMOGOV has Intellectual Property Rights, and Client shall be developing and creating inventions or processes which may interact with such Software and/or Documentation (whether capable of registration or not) (collectively Works), and Client shall be legal and beneficial owner of such works.

10.3.1. OPTIMOGOV shall not have any right, title or interest in any rights subsisting in the Works anywhere in the world – For Clarity, this does not include any IP owned, developed, enhanced by OPTIMOGOV.

10.3.2. Nothing in this section shall provide the Client the right to reverse-engineer the OPTIMOGOV software.

11.     WARRANTIES, INDEMNITY, AND INSURANCE

11.1. Limited Warranty

OPTIMOGOV warrants that to the best of its knowledge and belief, there are no material defects or faults in the Software. OPTIMOGOV warrants that the Software will materially deliver the modules and functionality described as agreed in the order of the client and the user documentation for the Software and further warrants that it will use reasonable endeavours to correct any such defects and faults of which it becomes aware as per OPTIMOGOV Total Care Service (included in the annual fee). The express warranties contained in this agreement are given in lieu of, and to the exclusion of all other warranties, liabilities and conditions expressed or implied by statute or otherwise. To the maximum extent permitted by law, OPTIMOGOV disclaims all other warranties, either express or implied, including but not limited to any implied warranty of fitness for a particular purpose.

11.2. Correction of Defects

In the event that the Software does not perform as stated above, OPTIMOGOV’s entire liability and the Client’s exclusive remedy shall, be at OPTIMOGOV’s option, either deliver (a) replacement of the Software that does not meet OPTIMOGOV’s limited warranty or (b) a refund of the software licence price paid in the last 12 months. OPTIMOGOV will use its best endeavours to deliver software in a timely fashion prior to any cancellation.

11.3. Additional Limitation

This limited warranty is void if failure of the Software has resulted from accident, abuse or misapplication by the Client or the Software is not run on the correct systems infrastructure or the failure of any hardware on which the Software was installed.

11.4. Indemnity by OPTIMOGOV

11.4.1. OPTIMOGOV must at all times indemnify and hold harmless the Client, its officers, employees and agents from and against all costs, expenses, losses and damages arising out of an infringement of a third party’s Intellectual Property Rights by OPTIMOGOV (IP Claim).

11.4.2. If an IP Claim is made, then the Client must immediately provide full details to OPTIMOGOV. OPTIMOGOV shall conduct the defence of any infringement proceedings, and the Client shall, at OPTIMOGOV’s cost, provide all reasonable assistance to OPTIMOGOV in respect of the proceedings.

11.4.3. In the event that any judgement holds that the Software (or any part of it) infringes a third- party’s Intellectual Property Right, OPTIMOGOV will at its expense:

11.4.4. use all reasonable endeavours to immediately secure all necessary consents to ensure the Client’s undisturbed continued use of the Software, or if this is not possible;

11.4.5. make all reasonable effort to modify or replace the Software so that it does not infringe a third-party’s Intellectual Property Rights, provided that the Software’s functionality and operation remains of a standard required by this Agreement; or

11.4.6. use all reasonable endeavours to secure the use of replacement software suitable to the Client on terms no less favourable than this Agreement.

11.5. Mutual Indemnity

11.5.1. Each party agrees to indemnify, defend, and hold harmless the other party and such party’s parents, subsidiaries and affiliates, and each of their respective members, officers, directors, principals, employees, agents and representatives (all such entities and persons, collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, suits, demands, costs, damages (including bodily or personal injury, death, and property damage) and expenses in connection with any third party claim (including reasonable legal fees and expenses) (collectively, “Losses”), suffered or incurred by the Indemnified Parties, to the extent caused by, related to, or in connection with: (I) the indemnifying party’s breach of this Agreement, including, without limitation, any of such party’s representations and warranties herein; and/or (ii) the gross negligence or intentional misconduct, of the indemnifying party and/or such party’s officers, directors, principals, employees, subcontractors and/or any other entity or personnel that is, was or should have been under such party’s control or supervision.

11.6. Insurance

OPTIMOGOV shall procure and maintain, at its sole cost and expense, the following insurance polices during the Term concerning its operations, services and Software provided under this Agreement:

11.6.1. Public and Product Liability $ 20,000,000

11.6.2. Professional indemnity $ 10,000,000

12.     LIABILITY

12.1. No consequential loss, and so on.

In no event will either party or its principals, employees or agents be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits, loss of data, and opportunity costs)

12.2. Statutory Warranties

OPTIMOGOV’s sole liability for breach of any such obligation or implied warranty (including for any consequential loss) shall be limited to:

12.2.1. in relation to Software:

• the replacement of the Software, or the supply of equivalent software, or payment of the costs of replacing the Software or acquiring equivalent software; or
• the repair of the goods or payment of the cost of having the software repaired;
• a refund of the license fees previously paid by Client which were unearned.

12.2.2. in relation to services:

• the supplying of the services again; or
• the payment of the cost of having the services supplied again as in each case OPTIMOGOV may elect in its sole and absolute discretion.
• a refund of the services fees previously paid by Client, which were unearned.
• Subject to any express statement to the contrary in this Agreement, all other conditions and warranties which may otherwise be implied in this Agreement (by statute or otherwise) are excluded.

12.2.3. The Client warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of OPTIMOGOV, which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity materials produced by OPTIMOGOV which has not been stated expressly in this Agreement.

12.2.4. Where any loss or damage suffered by the Client is attributable to the fault, negligence, or lack of care on the part of the Client or on the part of any person for whom the Client is responsible, OPTIMOGOV and its partners and staff have no liability (in tort, contract or otherwise) for such loss or damage to the extent that it is attributable to the relevant fault, negligence or lack of care.

12.2.5. The Client acknowledges and agrees that OPTIMOGOV will not be liable to the Client for any damages, costs, expenses or loss (including, without limitation, loss of profits, loss of data and opportunity costs) incurred by the Client as a consequence of fraudulent behaviour by Client.

12.2.6. The parties expressly agree that this Clause 12 survives the termination of this Agreement.

13.     CLIENT CONFIDENTIAL INFORMATION

13.1. OPTIMOGOV’s acknowledgements

13.1.1. OPTIMOGOV acknowledges that:

• in performing its obligations under this Agreement, it may generate or acquire Confidential Information proprietary to the Client;
• the Client’s Confidential Information contains information that is valuable to the Client, and the improper use or disclosure of the Client’s Confidential Information may cause serious loss and damage to the Client, its respective customers and suppliers.

13.1.2. Use of the Client’s Confidential Information

Except as permitted by this Agreement, or otherwise with the prior written consent of the Client, OPTIMOGOV must:

• not disclose any of the Client’s Confidential Information to any person, and will hold the Client’s Confidential Information in strict confidence and keep it secret,
• not make any use of any of the Client’s Confidential Information except for the purposes of performing its obligations under this Agreement,
• only disclose Client’s Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;
• put in place and maintain adequate security measures to protect Client’s Confidential Information from unauthorised access or use;
• not reproduce any of the Client’s Confidential Information except to the extent necessary to fulfil its obligations under this Agreement,
• on request at any time by the Client, immediately return to the Client or permanently delete or destroy, as the Client directs, all copies or records of the Client’s Confidential Information in OPTIMOGOV’s possession or control, and provide written confirmation once this has occurred.

13.1.3. Extent of obligations

The provisions of Clause 13.2 do not apply to:

• information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this Clause 13 or of any obligation of confidence;
• information after it becomes generally available to the public other than because of a breach of this Clause 13 or of any obligation of confidence;
• the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case OPTIMOGOV will notify the Client that it is required to disclose the Confidential Information prior to such disclosure).

13.2. Period of obligations

OPTIMOGOV’s obligations under this Clause 13 survive termination of this Agreement.

14.     OPTIMOGOV CONFIDENTIAL INFORMATION

14.1. Obligations to keep information confidential

The Client must:

14.1.1. Keep all OPTIMOGOV Confidential Information strictly confidential and not disclose it to any person or Third-party without OPTIMOGOV prior written consent. Should OPTIMOGOV consent to any disclosure of its Confidential Information, the Client must, prior to any disclosure, obtain from the person to whom the Confidential Information will be disclosed, an executed Confidentiality Agreement in such form that OPTIMOGOV may provide to the Client;

14.1.2. only disclose OPTIMOGOV Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;

14.1.3. put in place and maintain adequate security measures to protect OPTIMOGOV Confidential Information from unauthorised access or use;

14.1.4. only use OPTIMOGOV Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement;

14.1.5. on request at any time by OPTIMOGOV, immediately return to OPTIMOGOV or permanently delete or destroy, as OPTIMOGOV directs, all copies or records of OPTIMOGOV Confidential Information in the Client’s possession or control, and provide written confirmation once this has occurred;

14.1.6. keep this Agreement and its terms confidential unless otherwise agreed by the parties.

14.2. Exceptions

The provisions of Clause 14(1) do not apply to:

14.2.1. information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this Clause 14 or of any obligation of confidence;

14.2.2. information after it becomes generally available to the public other than because of a breach of this Clause 14 or of any obligation of confidence;

14.2.3. the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case the Client will notify OPTIMOGOV that it is required to disclose the Confidential Information prior to such disclosure).

14.3. Period of obligations

The Client’s obligations under this Clause 14 survive termination of this Agreement.

15.     TERMINATION

15.1. Termination by either party

Either party may terminate this Agreement with 60 days written notice if the other party:

15.1.1. breaches a material term of this agreement that is not capable of remedy;

15.1.2. breaches a material term of this Agreement that is capable of remedy, and does not remedy that breach within 30 days of the terminating party giving notice to the other party to rectify the breach;

15.1.3. becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration and/or is unable to pay its debts as and when they fall due; or

15.1.4. ceases or threatens to cease conducting its business in the normal manner.

15.2. Suspension

OPTIMOGOV may suspend the Client’s access to the Software without notice if any amount payable by the Client under this Agreement remains unpaid for 60 or more days.

15.3. Other Rights not affected by Termination

Termination under this Clause 15 will be without prejudice to any other rights or remedies to which either party may be entitled at law.

15.4. Software on Termination or Expiry

15.4.1. On expiry or termination of this Agreement, the Client’s access to the Software and the Documentation (including all copies of them) will immediately cease.

15.4.2. This Clause survives the expiry or termination of this Agreement.

15.5. Return of Your Data

Upon written request by you made within thirty (30) days after the effective date of termination of the Services and at your cost, OPTIMOGOV will return your data in the format acceptable. After such 30- day period, OPTIMOGOV shall have no data in OPTIMOGOV’s systems or otherwise in OPTIMOGOV’s possession or under OPTIMOGOV’s control.

15.6. Surviving Provisions

The Parties’ rights and obligations which, by their nature, would continue beyond the termination of this Agreement shall survive such termination, including the rights and obligations created by the following clauses: Fees and Payment for Purchased Services, Ownership, Proprietary Rights and Use of Data, Confidentiality, Disclaimer, Indemnification, Limitation of Liability, Refund or Payment upon Termination, Return of Your Data, Who You Are Contracting With, Notices, Governing Law and Jurisdiction, and General Provisions.

16.     FORCE MAJEURE

16.1. Notice and suspension of obligations

16.1.1. If a party is affected or is likely to be affected by a Force Majeure Event, that party must, as soon as practicable after becoming aware of the Force Majeure Event, immediately give the other party notice of that fact including:

• full particulars of the Force Majeure Event;
• an estimate of its likely duration;
• the obligations or benefits affected by the Force Majeure Event and the extent of the effect of the Force Majeure Event on those obligations and/or benefits; and
• the steps taken to rectify the Force Majeure Event.
• The obligations under this Agreement of the party giving the notice (except the obligation to pay money) are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

16.2. Effort to overcome

A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible. However, this does not require a party to settle any industrial dispute in any way it does not want to.

17.     DISPUTES

17.1. Negotiation

If there is a dispute between the parties in connection with this Agreement, then, within 10 Business Days of a party giving the other notice of the dispute under this Clause 17, responsible officers of each of OPTIMOGOV and the Client must meet and use all reasonable endeavours acting in good faith to resolve the dispute.

17.2. Escalation

If the dispute is not resolved within 15 Business Days of the meeting referred to in Clause 17.1, then the parties must first refer the dispute to the Managing Director or Chief Executive Officer / Project Sponsor of each party, who will attempt to resolve the dispute, and who may (but are not obliged to) agree to submit the dispute to an independent expert acceptable to both parties for determination. The cost of submission to that independent expert will be met equally by the parties.

17.3. Decision to be binding

If a dispute is submitted to an independent expert, the parties must comply with all determinations made under Clause 17.2. Any person appointed to resolve the dispute under Clause 17.2 will sit as an expert and not as an arbitrator, and (except for cases of manifest error or fraud) determinations made under Clause 17.2 are not subject to appeal to any court or tribunal. A party will not commence court proceedings in relation to a dispute until the procedures in Clauses 17.1 and 17.2 have been exhausted.

18.     GENERAL PROVISIONS

18.1. Taxes

If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies and includes payments for supplies relating to the breach or termination of and indemnities arising from this document.

18.2. Assignment

Neither party may transfer any of its rights and liabilities under this Agreement without the written consent of the other party.

18.3. Notices

18.3.1. Form and Service

A notice, consent, approval or other communication under this document must be signed on behalf of the party giving it, addressed to the party to whom it is to be given and may be:

• delivered to the last known address of a party on a business day between 9.00 am and 5.00 pm (at the place of delivery);
• sent to the last known address of a party by registered pre-paid post;

18.3.2. Time of Service

A notice is deemed to be given and received:

• if given in accordance with sub Clause 3.1.1 above, on the date of delivery;
• if given in accordance with sub Clause 3.1.2 above, one (1) clear business day after the day of posting to an address in Australian posting;

18.3.3. Further assurance

Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of this document.

18.3.4. Continuing performance

• The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performance of this document.
• Any representation in this document survives the execution of any document for the purposes of, and continues after, performance of this document.
• Any indemnity agreed by any party under this document:
• constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement; and
• survives and continues after performance of this document.

18.3.5. Waivers

Any failure by any party to exercise any right under this document does not operate as a waiver, and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

18.3.6. Remedies

The rights of a party under this document are cumulative and not exclusive of any rights provided by law.

18.3.7. Severability

Any provision of this document that is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.

18.3.8. Governing Law and Jurisdiction

• Clients specific law and Jurisdiction.

18.3.9. Use of Trademark

The Client will authorise OPTIMOGOV to use the trademarks on a non-exclusive basis for the Term without any fee in advertising, for promotional documents including websites to indicate that the Client is a licensed user of the Software (but not to be used as a trademark and subject to such reasonable conditions and stipulations which the client may require). The Client agrees to provide any artwork reasonably required for such purposes.

19.     HOSTING, AVAILABILITY, SECURITY and DISASTER RECOVERY

19.1. As indicated in OPTIMOGOV’s Hosting and security documentation.

20.     USE OF THE SERVICES

20.1. OPTIMOGOV Responsibilities

OPTIMOGOV shall:

• Provide support for Services to Customer per the OPTIMOGOV Service Level Agreement
• Use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:
• Planned downtime (in which case OPTIMOGOV shall give at least 48 hours’ notice via the Services or email. OPTIMOGOV shall schedule planned downtime to the extent practicable during the weekend hours agreed prior with the client.
• Any unavailability caused by circumstances beyond OPTIMOGOV reasonable control, including without limitation, events of force majeure, malicious attacks on the system, issues associated with
• Customer’s computing devices or local area networks, OPTIMOGOV inability to deliver Services because of Customer’s acts or omissions, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving OPTIMOGOV employees), Internet service provider connection failures or delays; and
• Provide the Services in accordance with applicable laws and government regulations.

20.2. Customer Data

OPTIMOGOV shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of your data. Subject to the limited rights granted by you, Customer pursuant to these Terms, we acquire no right, title, or interest from you or your licensors under these Terms in or to your data, including any intellectual property rights therein. OPTIMOGOV shall perform a daily backup of all of your data.

If during the provision of the Services OPTIMOGOV has access to personal data of Customer and Users, OPTIMOGOV as data processor will always comply with applicable data protection laws, in particular, process such personal data solely for the purpose of providing the Services, to oblige its employees to maintain personal data confidential and to instruct them about the individual privacy provisions to adhere to. OPTIMOGOV shall maintain the technical and organisational measures required under the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) for protection of the security, confidentiality, and integrity of Customer’s personal data. OPTIMOGOV in its role as data processor acquires no right, title or interest from you or your licensors under these Terms in or to your data, including any Intellectual property rights therein. The Parties undertake at all times to comply with the applicable data protection laws and regulations, in particular the GDPR with regard to the collection, storage, use, and disclosure of any personal or sensitive information and data they collect, use, or otherwise access in connection with the Services and both parties shall oblige their personnel to observe those data secrecy requirements pursuant to the relevant applicable laws and regulations.

Legitimate data protection obligations of the Parties pertaining to possible commissioned data processing are set forth in the data processing agreement in accordance with Art. 28 GDPR between Customer (data controller) and OPTIMOGOV (data processor), which must be signed by both Parties and shall be attached to the applicable Order Form and which forms an integral part of the Agreement. The statutory and applicable data protection provisions, in particular Art. 82 GDPR, apply in the event of compensation of liability claims.

OPTIMOGOV shall not:

• Modify your data;
• Disclose your data except as compelled by law (Compelled Disclosure) or as expressly permitted in writing by you; or
• Access your data, except in order to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.

20.3. Customer’s Responsibilities

Customer shall:

20.3.1. Be responsible for the Users’ compliance with these Terms and for any activities that occur under Users’ accounts;

20.3.2. Be responsible for the accuracy, quality, and legality of your data and of the means by which you acquired your data;

20.3.3. Use commercially reasonable efforts to prevent unauthorised access to or use of the Services and notify OPTIMOGOV promptly of any unauthorised access or use. Furthermore, in the event that Customer discovers any such unauthorised use or access, Customer shall immediately stop the unauthorised use or access. Customer acknowledges and agrees that in such cases, OPTIMOGOV may seek injunctive relief and any other remedies that may be available to it at law or in equity;

20.3.4. Use the Services only in accordance with these Terms and applicable state laws, ordinances, and federal laws and regulations;

20.3.5. Work cooperatively with OPTIMOGOV in receiving, approving, and accepting services. Customer shall access and use the Services with secured environment as per the guidelines provided by OPTIMOGOV;

20.3.6 Be on a supported version of OPTIMOGOV’s software and plan upgrades accordingly. Failure to do so may result in OPTIMOGOV upgrading Customer environment to a supported version as soon as their existing version ceases to be supported;

20.3.7. Implement, maintain, and update all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties.

Customer shall not:

• Make the Services available to anyone other than authorised Users;
• Permit any third party to access the Services except as permitted by these Terms or in an Order Form;
• Customer shall not upload, post, reproduce, or distribute any data or material protected by privacy rights without first obtaining the permission of the owner of such rights;
• Sell, resell, rent or lease the Services;
• Modify, alter, or create derivative works based on the Services except as authorised by these Terms;
• Copy, frame, or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes;
• Reverse engineer the Services except to the extent permitted by law;
• Access the Services in order to:
• Build a competitive product or service, or
• Copy any features, functions, or graphics of the Services;
• Use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
• Use the Services to store or transmit Malicious Code;
• Interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
• Attempt to gain unauthorised access to the Services or their related systems or networks;
• Use the services in violation of any applicable state laws, ordinances, and federal laws and regulations; and
• Unreasonably withhold or delay any consent, approval, or acceptance required by the Order Form.

21.     SUPPORT AND TOTAL CARE SERVICES

• OPTIMOGOV’s SLA support caters to global clients – Technical support is provided to all of our clients through a dedicated OPTIMOGOV support department covering multiple time zones worldwide and including Europe, the Middle East, North America and Australasia.
• Online Web Portal – Access to a dedicated support and maintenance web portal will be provided.
• Phone – Support team can be contacted through a dedicated support number, and a member of our team will deal with your incident.
• E-mail – support@OPTIMOGOVsoftware.co.uk: your incident log will be attended by our team based on severity.
• Dedicated Account Manager – Contact (including phone and email)
• As standard, the SLA includes the following response times and resolution times for agreed support hours:
• Client Time Zone Specific SLA

22.     CHANGE CONTROL

22.1. Change Request

If either party wishes to make changes to the signed off Additional Requirement Agreement in any way, then it shall submit to the other party written particulars of the proposed change. Please see Table 1 below

22.2. Effect on Implementation Plan; Estimate

If the Client submits such written particulars, then OPTIMOGOV will investigate the effect on the Implementation Plan and this Agreement of implementing such change. If OPTIMOGOV is requested to proceed with the investigation OPTIMOGOV shall report the results thereof to the Client stating the effect of the proposed change in terms of technical feasibility and its impact and any other consequent changes to the Additional Requirement Agreement (including without limitation costs, the Implementation Plan, and the date for the delivery of the changes) and other matters it reasonably judges necessary within 15 working days of receiving notification from the Client. Lead times for work may vary.

22.3. Agreement to Proceed

If the Client wishes to proceed with such change, it shall instruct OPTIMOGOV to proceed with the variation in writing within 7 working days of receiving the results of such investigation. Once agreed by the Client- OPTIMOGOV will endeavour to commence work within 5 working days. The variation and any other necessary consequential changes to the Software or the Implementation Plan or this agreement (including revised price or estimate) will be recorded in a change order. If OPTIMOGOV is requested to proceed, then the dates estimated in the Implementation Plan as the Delivery Dates shall (if appropriate) be extended by such number of days (if any) as OPTIMOGOV shall have notified the Client for such purpose.

22.4. Overruns

If, however, OPTIMOGOV has reason to believe that any estimate of any time and materials charges which may be payable under the Change Order is likely to be exceeded or that it is likely that the Implementation Plan will not be complied with because of any delays, OPTIMOGOV shall immediately notify the Client.

22.5. Cost of Development

For any customisation, OPTIMOGOV and the Client will use good faith efforts to discuss and agree to the cost of customisation and the number of unit-days required, as and when the Client requires a change in the Software based on the process described in Table 1. Please note if we need to carry out an initial analysis to get a proposal out then we will quantify the work required and quote for it appropriately.

22.6. Terms of Software Customisation, Delivery, and Acceptance

The Software changes will be delivered in accordance with the flow chart on Table 1 and the Additional Requirement Agreement. If such changes are requested or required, OPTIMOGOV and the Client shall agree on the timeframe for the delivery of such changes, the plan for implementing the Software changes, the required performance and related criteria for such changes, and the anticipated final costing for such changes.

22.7. Failure to Customise Timely

If delivery of software customisation has not occurred by OPTIMOGOV and due solely to the fault of OPTIMOGOV 60 days after the estimated agreed delivery date, the Client shall be entitled to terminate the Additional Requirement Agreement immediately on written notice for material breach and will not be committed to proceed with it and will obtain a refund for any amounts paid pursuant to the Additional Requirement Agreement. In the event that the Client has suffered damages, loss of profits, goodwill or opportunity (whether reasonably foreseeable or not) in connection with the termination of Additional Requirement Agreement, and provides concrete evidence of those, OPTIMOGOV will be liable to pay compensation. The total aggregate maximum liability, including refund, shall not under any circumstances exceed 150% of the costs specified in the Additional Requirement Agreement.

22.8. Failure to Customise Due to Client Action or Fault

If the Client aborts the project for any reason before completion, or any delay in complying with the above procedure is solely due to the Client’s fault, and not due to the specific poor performance of OPTIMOGOV that has been notified in writing by the Client and not been rectified within a reasonable time period OPTIMOGOV will be entitled to receive full payment for the additional costs that were provided free of charge or at a discounted rate (if there were any). OPTIMOGOV may nevertheless, if the Client so requests, continue to provide the Services with a view to achieving Final Acceptance as soon as reasonably possible in the circumstances, and the Implementation Plan will be adjusted accordingly. In such circumstances, the Client shall reimburse OPTIMOGOV for all reasonable direct costs incurred and demonstrated by OPTIMOGOV as a result of such delay.

23.     ACCEPTANCE TESTING

23.1. Definition of Specifications

The Client will be responsible for defining acceptance test requirements and undertaking such tests. The Client may only reject Software, functionality or other deliverables set out in the Specification if it fails to comply with the Specification. Timeframe for Testing. The Client and OPTIMOGOV will agree reasonable timescales from the date of installation in which it must carry out the acceptance tests and inform OPTIMOGOV whether it accepts the customised Software, functionality or deliverables (giving full reasons and details of any defects). If OPTIMOGOV has not received such notice from the Client within 40 days of the date at which the tests were agreed to commence, the Software, functionality or other deliverables will be deemed to be accepted by the Client.

23.2. Notification of Errors; Correction

If the Client has notified OPTIMOGOV that it cannot accept any Software, functionality, or deliverables, OPTIMOGOV will use all possible endeavours to correct any errors notified to it and shall redeliver the Software, functionality or other deliverables to the Client. The Client will then have a further period of 30 days for re-testing, after which it shall either accept the Software or further notify OPTIMOGOV that it is still unable to accept the Software. If after three attempts the Client is still unable to accept the software due to a material fault or error, which has been previously notified by the Client and the material fault or error is within OPTIMOGOV’s software, that OPTIMOGOV has been unable to correct the Client shall have the right to reject the Software and terminate the Additional Requirement Agreement for material breach. OPTIMOGOV shall refund to the Client all amounts paid to OPTIMOGOV in respect of any such rejected Software. In the event that the Client has suffered damages, loss of profits, goodwill or opportunity (whether reasonably foreseeable or not) in connection with the termination of Additional Requirement Agreement and provides concrete evidence of those, OPTIMOGOV will be liable to pay compensation. The total aggregate maximum liability, including refund, shall not under any circumstances exceed 150% of the costs specified in the Additional Requirement Agreement.

24.     SPECIAL DELIVERABLE COMMITMENT

As per clarification #4 & #5 post submission of the tender response – council will not bear any additional costs or face timeline risks related to this direct ECR integration. OPTIMOGOV will ensure to produce the final input and output required to ensure this process is seamless prior to going live and will ensure it is accepted by council.

Table 1: Change request process

PROGRAMUS LTD TERMS AND CONDITIONS

Programus Ltd UK (UK REG: 03923052) (“OPTIMOGOV”) provides access to its software for products or services (“the Services”) purchased through any Order by you (“Customer”).

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY as they govern your use of the Services, and by ordering and providing the Services, you agree to be bound by these Terms. If you are ordering the Services on behalf of an entity, you represent that you have the authority to bind such entity, its successors, assigns, subsidiaries, and its affiliates to these Terms & Conditions, in which case the terms “you” and “Customer” refer to such entity, its successors, assigns, subsidiaries, and affiliates.

NOTICE: COMPETITORS OF MAY NOT ACCESS THE SERVICES WITHOUT OPTIMOGOV PRIOR WRITTEN CONSENT FOR ANY PURPOSE, INCLUDING MONITORING AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR OTHER BENCHMARKING OR COMPETITIVE PURPOSE(S).

These Terms & Conditions are effective between you and OPTIMOGOV as of the date you place an order for the Services. This Agreement shall be fully executed by an authorised signatory for both Customer and OPTIMOGOV and will continue until terminated.

THE PARTIES AGREE TO THE FOLLOWING TERMS AND CONDITIONS

1.       DEFINITIONS AND INTERPRETATION

1.1.   Definitions

In this Agreement, the following terms have these meanings unless stated otherwise.

1.2.   Agreement

means the agreement created between the Client and OPTIMOGOV by this document, and the Client Agreement;

1.3.   Business Day

means any day other than Saturday, Sunday and UK public holidays;

1.4.   Client Agreement

means the document that specifies the inclusions of the Software.

1.5.   Commencement Date

means the date on which this Agreement is executed by both OPTIMOGOV and Client;

1.6.   Confidential Information

means any information or material (including information or material provided to a party by Third Parties (as defined)), whether in oral, visual or written form or recorded in any other medium, disclosed by a party to, or observed from a party by, the other party, or which is otherwise acquired by one party directly or indirectly from the other party or generated by a party in accordance with this Agreement, which is designated, or treated, by a party as confidential, including, without limitation, the Software Source Code, Object Code, file layouts and interfaces, and Documentation, and all confidential discoveries, ideas, trade secrets, know-how, concepts, software in various stages of development, designs, drawings, specifications, techniques, models, data, source code, object code, file layouts, documentation, diagrams, flowcharts, processes and procedures, and information pertaining to the business, plans, forecasts, finances and strategies of a party and its clients and suppliers and each of their clients and suppliers;

1.7.   Documentation

means the documentation for and in relation to the Software to be provided to the Client by OPTIMOGOV under this Agreement;

1.8.   Equipment

means equipment which OPTIMOGOV recommends from time to time and which is to be provided by the Client;

1.9.   Event

means a function, meeting, gathering, convention, concert or other similar gathering;

1.10.        Fault

means a failure in the normal operation of the Software;

1.11.        Fault Response Time

means the period of time between a failure in the normal operation of the Software being reported to OPTIMOGOV by the Client and a response from OPTIMOGOV acknowledging the report and are as specified in Clause 21.

1.12.        Fees

means the fees described in the accompanying Client Agreement

1.13.        Force Majeure Event

means, for a party, any occurrence or omission as a direct result of which the party is prevented from or delayed in performing any of its obligations under this Agreement (other than the payment of money), and that is beyond the reasonable control of that party, including but not limited to forces of nature, industrial action, and action or inaction by a government agency;

1.14.        Installation

means the provision to the Client of access to the Software;

1.15.        Intellectual Property Rights

means all industrial and intellectual property rights worldwide, whether protectable by statute, at common law or in equity, and whether or not registered or capable of being registered, including but not limited to:

1.15.1. the entire copyright throughout the world and any similar rights which may subsist or may hereafter subsist in all works, discoveries, designs, drawings, specifications, records, manuals, models, memoranda, technical data, and in particular the Software, its Source Code, Object Code, file layouts and interfaces and the Documentation, and in any other subject matter;

1.15.2. source code and object code, software or hardware products (whether fully developed or in research and development stage);

1.15.3. rights in relation to inventions (including all patents and patent applications);

1.15.4. rights in relation to trade secrets, business concepts and know-how;

1.15.5. rights in relation to designs (whether or not registrable);

1.15.6. rights in relation to registered and unregistered trademarks;

1.15.7. rights in relation to circuit layout designs and circuit layouts;

1.16.        OPTIMOGOV Support Desk

means the contact point for Faults, which the Client may log tickets into OPTIMOGOV support portal, contact OPTIMOGOV Support by dialling the number telephone number specified here TBA or Email (Special dedicated number also to be provided as part of this partner agreement)

1.17.        Licence

means the licence to use the Software;

1.18.        Licensed User

means each person including employees, agents, brokers and non-employees of the Client, who has access to and is licensed to use the Software in accordance with the terms of this Agreement and the relevant Plan;

1.19.        Merchant Fee

means all costs of processing merchant transactions, including bank fees and other third-party costs;

1.20.        Order form

means the documents signed by Customer or an Affiliate placing an order for the Services, including any addenda or supplements thereto, this also includes any OPTIMOGOV responses and commitments to client’s specifications stipulated in competitive tender process.

1.21.        Service Levels

means those set out in Clause 21;

1.22.        Software

means OPTIMOGOV software which is to be supplied by OPTIMOGOV to the Client;

1.23.        Taxes

means all applicable taxes including, without limitation, excise duties, sales tax, GST, VAT, stamp duties, customs duties, payroll taxes, government duties, charges and fees, other than income tax;

1.24.        Term

means the period beginning on the Commencement Date and ending on the termination of this Agreement, or as set out in the Customer Agreement;

1.25.        Third-party

means any person or entity, other than OPTIMOGOV, and includes (but is not limited to) any or all of the Client’s related entities, associates, suppliers, contractors, sub-contractors, agents and consultants;

1.26.        Third-party Software

means any software which is not created or manufactured by OPTIMOGOV;

2.       ENTIRE AGREEMENT

This Agreement and the other documents that are referenced in this agreement constitutes the entire agreement between you, and OPTIMOGOV regarding your use of the Services. No modification, amendment, or waiver of any provision in this Agreement will be effective unless in writing and signed by the party against whom enforcement is sought.

3.       ORDER

These Terms & Conditions are incorporated by reference into each Order Form submitted by Customer. Together, these Terms and the Order Form comprise a binding agreement between you and OPTIMOGOV effective as of the date specified in the Order Form and only as it pertains to services undertaken pursuant to this specific Order Form and continuing for the term stated in the Order Form. These Terms govern your right to access the Services and use OPTIMOGOV software.

4.       GRANT OF LICENCE

4.1.   OPTIMOGOV grants to the Client a non-exclusive Licence for the Term to use the Software and Documentation for the Purpose, always subject to payment by the Client of all monies to be paid under this Agreement.

4.2.   The Licence to use the Software is non-transferable.

5.       THIRD-PARTY SOFTWARE

5.1.   The Client acknowledges and agrees that Third-party Software may be required, and those fees are not specified in this Agreement—for example, Payment Service Provider fees and so on.

5.2.   Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducements or representations, whether express, implied, statutory or otherwise relating in any way to the Third-party Software are excluded. Without limiting the generality of the preceding sentence, OPTIMOGOV shall not be under any liability to the Client in respect of any loss or damage (including consequential loss or damage) however caused which may be suffered or incurred or which may arise directly or indirectly in respect of any error or defect in or failure of, any Third-party Software.

6.       LICENSED USE

6.1.   Licensed Users

Master licence – The Licence applies only to and only permits use by the Licensed Users.

6.2.   Prohibited Use

Unless otherwise permitted by this Agreement, the Client must not:

• reverse-engineer or attempt to reverse-engineer the Software or any part of the Software;
• attach, operate or otherwise interface any third-party software (other than the Software) with the Software and/or the Equipment without the prior written consent of OPTIMOGOV, which consent may be given or withheld by OPTIMOGOV (including the imposition of terms) in OPTIMOGOV’s sole discretion but such consent will not be unreasonably withheld provided OPTIMOGOV is satisfied that its Intellectual Property Rights are protected. For clarity, OPTIMOGOV hereby consents and shall support in all commercially reasonable manners to interfacing Client’s proprietary software with the Software.

7.       PROPRIETARY RIGHTS

7.1.   No Transfer of Rights

The Client:

• acknowledges that the Licence does not involve the transfer to it of any proprietary rights in the Software; and
• to the extent applicable to Client’s use, will take all reasonable steps within its control to assist OPTIMOGOV in its efforts to protect OPTIMOGOV Intellectual Property Rights in the Software.
• For clarity, Client shall retain all ownership and intellectual property rights in and to all technology built by Client which integrates with OPTIMOGOV during the term hereof.

8.       INVESTIGATION OF FAULTS

8.1.   OPTIMOGOV will analyse the cause of the suspected Fault and determine if the suspected Fault is a Fault and, if so, will issue the Client a Fault reference number.

8.2.   OPTIMOGOV will use its best efforts to meet the Fault Response Times.

8.3.   OPTIMOGOV will not provide Fault rectification or restoration under this Agreement where the cause of the Fault is a result of Client’s actions or omissions.

9.       INVOICING, PAYMENT and TERMS

9.1.   Increases

OPTIMOGOV shall not vary charges set out in the commercial proposal of this agreement during the term of this Agreement.

9.2.   Payment Terms

OPTIMOGOV shall levy the fees following the payment terms set in the commercial proposal of this agreement. All charges shall be payable by Client within 30 days from receipt of an invoice.

9.3.   Late Payments

OPTIMOGOV reserves the right to charge the Client interest in respect of the late payment of any charges due under this Agreement. The interest will be 3% per annum above the national base rate from time to time from the due date until payment (as well after as before any judgement).

9.4.   Currency and Taxes

All charges and prices quoted in this agreement are in GBP  (Great British Pounds) and are exclusive of Taxes and Duties.

9.5.   Client Requirements

The Client shall be responsible to ensure that sufficient staff and third-party software is ready and available to enable OPTIMOGOV to carry out required tasks regarding the Software, including without limitation installations and upgrades. Should a remote service or a site visit take place and pre-visit requirements are not ready, and therefore the remote service or site visit must be re-scheduled, at OPTIMOGOV’s option, this will incur the full cost of a remote service call or an on-site visit. Should there be connectivity or system issues that need to be resolved at the site during the installation of, upgrading or other work involving the Software, these will be highlighted, and additional work can be discussed at an appropriate time (provided such issues are not a result of OPTIMOGOV having provided an incorrect Recommended System Specification or any other fault of OPTIMOGOV).

9.6.   Hardware

No hardware cost is included in this agreement.

10.    INTELLECTUAL PROPERTY

10.1.        Intellectual Property Rights

The Client acknowledges that all Intellectual Property Rights in OPTIMOGOV’s Confidential Information, the Software and the Documentation, and in any enhancement, or modification of the Software or the Documentation, and in any other material proprietary to OPTIMOGOV, vest expletively in OPTIMOGOV, and that the Client will not infringe OPTIMOGOV’s Intellectual Property Rights, nor seek to exploit or use any such material for its own purposes other than as set out in this Agreement.

10.2.        Acknowledgment

The Client acknowledges that:

10.2.1. all Intellectual Property Rights in OPTIMOGOV’s Confidential Information, the Software, the Documentation, in any other material proprietary to OPTIMOGOV, and in any enhancement or modification of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement are and remain the property of OPTIMOGOV, and the Client acquires no right or interest (except for the Licence in such property); and

• following the expiry of the Term or earlier termination of this Agreement:
• the Client has no right or entitlement to use the Intellectual Property Rights of OPTIMOGOV referred to in Clause 10.2.1;
• OPTIMOGOV is not obliged to provide any maintenance services to the Client with respect to the Software, the Documentation, any other material proprietary to OPTIMOGOV, and any enhancement, modification or Customisation of the Software or the Documentation utilised by or provided to the Client in connection with this Agreement; and
• the Client’s access to the Software will cease immediately.

10.3.        Acknowledgement by OPTIMOGOV

OPTIMOGOV acknowledges that the Client is given access to the Software and Documentation and other things in which OPTIMOGOV has Intellectual Property Rights, and Client shall be developing and creating inventions or processes which may interact with such Software and/or Documentation (whether capable of registration or not) (collectively Works), and Client shall be legal and beneficial owner of such works.

10.3.1. OPTIMOGOV shall not have any right, title or interest in any rights subsisting in the Works anywhere in the world – For Clarity, this does not include any IP owned, developed, enhanced by OPTIMOGOV.

10.3.2. Nothing in this section shall provide the Client the right to reverse-engineer the OPTIMOGOV software.

11.    WARRANTIES, INDEMNITY, AND INSURANCE

11.1.        Limited Warranty

OPTIMOGOV warrants that to the best of its knowledge and belief, there are no material defects or faults in the Software. OPTIMOGOV warrants that the Software will materially deliver the modules and functionality described as agreed in the order of the client and the user documentation for the Software and further warrants that it will use reasonable endeavours to correct any such defects and faults of which it becomes aware as per OPTIMOGOV Total Care Service (included in the annual fee). The express warranties contained in this agreement are given in lieu of, and to the exclusion of all other warranties, liabilities and conditions expressed or implied by statute or otherwise. To the maximum extent permitted by law, OPTIMOGOV disclaims all other warranties, either express or implied, including but not limited to any implied warranty of fitness for a particular purpose.

11.2.        Correction of Defects

In the event that the Software does not perform as stated above, OPTIMOGOV’s entire liability and the Client’s exclusive remedy shall, be at OPTIMOGOV’s option, either deliver (a) replacement of the Software that does not meet OPTIMOGOV’s limited warranty or (b) a refund of the software licence price paid in the last 12 months. OPTIMOGOV will use its best endeavours to deliver software in a timely fashion prior to any cancellation.

11.3.        Additional Limitation

This limited warranty is void if failure of the Software has resulted from accident, abuse or misapplication by the Client or the Software is not run on the correct systems infrastructure or the failure of any hardware on which the Software was installed.

11.4.        Indemnity by OPTIMOGOV

11.4.1. OPTIMOGOV must at all times indemnify and hold harmless the Client, its officers, employees and agents from and against all costs, expenses, losses and damages arising out of an infringement of a third party’s Intellectual Property Rights by OPTIMOGOV (IP Claim).

11.4.2. If an IP Claim is made, then the Client must immediately provide full details to OPTIMOGOV. OPTIMOGOV shall conduct the defence of any infringement proceedings, and the Client shall, at OPTIMOGOV’s cost, provide all reasonable assistance to OPTIMOGOV in respect of the proceedings.

11.4.3. In the event that any judgement holds that the Software (or any part of it) infringes a third- party’s Intellectual Property Right, OPTIMOGOV will at its expense:

11.4.4. use all reasonable endeavours to immediately secure all necessary consents to ensure the Client’s undisturbed continued use of the Software, or if this is not possible;

11.4.5. make all reasonable effort to modify or replace the Software so that it does not infringe a third-party’s Intellectual Property Rights, provided that the Software’s functionality and operation remains of a standard required by this Agreement; or

11.4.6. use all reasonable endeavours to secure the use of replacement software suitable to the Client on terms no less favourable than this Agreement.

11.5.        Mutual Indemnity

11.5.1. Each party agrees to indemnify, defend, and hold harmless the other party and such party’s parents, subsidiaries and affiliates, and each of their respective members, officers, directors, principals, employees, agents and representatives (all such entities and persons, collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, suits, demands, costs, damages (including bodily or personal injury, death, and property damage) and expenses in connection with any third party claim (including reasonable legal fees and expenses) (collectively, “Losses”), suffered or incurred by the Indemnified Parties, to the extent caused by, related to, or in connection with: (I) the indemnifying party’s breach of this Agreement, including, without limitation, any of such party’s representations and warranties herein; and/or (ii) the gross negligence or intentional misconduct, of the indemnifying party and/or such party’s officers, directors, principals, employees, subcontractors and/or any other entity or personnel that is, was or should have been under such party’s control or supervision.

11.6.        Insurance

OPTIMOGOV shall procure and maintain, at its sole cost and expense, the following insurance polices during the Term concerning its operations, services and Software provided under this Agreement:

11.6.1. Public and Product Liability £10,000,000

11.6.2. Professional indemnity £5,000,000

12.    LIABILITY

12.1.        No consequential loss, and so on.

In no event will either party or its principals, employees or agents be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, lost profits, loss of data, and opportunity costs)

12.2.        Statutory Warranties

OPTIMOGOV’s sole liability for breach of any such obligation or implied warranty (including for any consequential loss) shall be limited to:

12.2.1. in relation to Software:

• the replacement of the Software, or the supply of equivalent software, or payment of the costs of replacing the Software or acquiring equivalent software; or
• the repair of the goods or payment of the cost of having the software repaired;
• a refund of the license fees previously paid by Client which were unearned.

12.2.2. in relation to services:

• the supplying of the services again; or
• the payment of the cost of having the services supplied again as in each case OPTIMOGOV may elect in its sole and absolute discretion.
• a refund of the services fees previously paid by Client, which were unearned.
• Subject to any express statement to the contrary in this Agreement, all other conditions and warranties which may otherwise be implied in this Agreement (by statute or otherwise) are excluded.

12.2.3. The Client warrants that it has not relied on any term, condition, warranty, undertaking, inducement or representation made by or on behalf of OPTIMOGOV, which has not been stated expressly in this Agreement, or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity materials produced by OPTIMOGOV which has not been stated expressly in this Agreement.

12.2.4. Where any loss or damage suffered by the Client is attributable to the fault, negligence, or lack of care on the part of the Client or on the part of any person for whom the Client is responsible, OPTIMOGOV and its partners and staff have no liability (in tort, contract or otherwise) for such loss or damage to the extent that it is attributable to the relevant fault, negligence or lack of care.

12.2.5. The Client acknowledges and agrees that OPTIMOGOV will not be liable to the Client for any damages, costs, expenses or loss (including, without limitation, loss of profits, loss of data and opportunity costs) incurred by the Client as a consequence of fraudulent behaviour by Client.

12.2.6. The parties expressly agree that this Clause 12 survives the termination of this Agreement.

13.    CLIENT CONFIDENTIAL INFORMATION

13.1.        OPTIMOGOV’s acknowledgements

13.1.1. OPTIMOGOV acknowledges that:

• in performing its obligations under this Agreement, it may generate or acquire Confidential Information proprietary to the Client;
• the Client’s Confidential Information contains information that is valuable to the Client, and the improper use or disclosure of the Client’s Confidential Information may cause serious loss and damage to the Client, its respective customers and suppliers.

13.1.2. Use of the Client’s Confidential Information

Except as permitted by this Agreement, or otherwise with the prior written consent of the Client, OPTIMOGOV must:

• not disclose any of the Client’s Confidential Information to any person, and will hold the Client’s Confidential Information in strict confidence and keep it secret,
• not make any use of any of the Client’s Confidential Information except for the purposes of performing its obligations under this Agreement,
• only disclose Client’s Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;
• put in place and maintain adequate security measures to protect Client’s Confidential Information from unauthorised access or use;
• not reproduce any of the Client’s Confidential Information except to the extent necessary to fulfil its obligations under this Agreement,
• on request at any time by the Client, immediately return to the Client or permanently delete or destroy, as the Client directs, all copies or records of the Client’s Confidential Information in OPTIMOGOV’s possession or control, and provide written confirmation once this has occurred.

13.1.3. Extent of obligations

The provisions of Clause 13.2 do not apply to:

• information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this Clause 13 or of any obligation of confidence;
• information after it becomes generally available to the public other than because of a breach of this Clause 13 or of any obligation of confidence;
• the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case OPTIMOGOV will notify the Client that it is required to disclose the Confidential Information prior to such disclosure).

13.2.        Period of obligations

OPTIMOGOV’s obligations under this Clause 13 survive termination of this Agreement.

14.    OPTIMOGOV CONFIDENTIAL INFORMATION

14.1.        Obligations to keep information confidential

The Client must:

14.1.1. Keep all OPTIMOGOV Confidential Information strictly confidential and not disclose it to any person or Third-party without OPTIMOGOV prior written consent. Should OPTIMOGOV consent to any disclosure of its Confidential Information, the Client must, prior to any disclosure, obtain from the person to whom the Confidential Information will be disclosed, an executed Confidentiality Agreement in such form that OPTIMOGOV may provide to the Client;

14.1.2. only disclose OPTIMOGOV Confidential Information to those of its officers, employees or contractors who need to know and who have been expressly directed to and have agreed to keep that information confidential;

14.1.3. put in place and maintain adequate security measures to protect OPTIMOGOV Confidential Information from unauthorised access or use;

14.1.4. only use OPTIMOGOV Confidential Information for the purpose of performing its obligations or exercising its rights under this Agreement;

14.1.5. on request at any time by OPTIMOGOV, immediately return to OPTIMOGOV or permanently delete or destroy, as OPTIMOGOV directs, all copies or records of OPTIMOGOV Confidential Information in the Client’s possession or control, and provide written confirmation once this has occurred;

14.1.6. keep this Agreement and its terms confidential unless otherwise agreed by the parties.

14.2.        Exceptions

The provisions of Clause 14(1) do not apply to:

14.2.1. information which at the time of its first disclosure or observation pursuant to this Agreement was generally available to the public other than because of a breach of this Clause 14 or of any obligation of confidence;

14.2.2. information after it becomes generally available to the public other than because of a breach of this Clause 14 or of any obligation of confidence;

14.2.3. the disclosure of information in order to comply with any applicable law or legally binding order of any court, government, semi-government authority or administrative or judicial body (in which case the Client will notify OPTIMOGOV that it is required to disclose the Confidential Information prior to such disclosure).

14.3.        Period of obligations

The Client’s obligations under this Clause 14 survive termination of this Agreement.

15.    TERMINATION

15.1.        Termination by either party

Either party may terminate this Agreement with 60 days written notice if the other party:

15.1.1. breaches a material term of this agreement that is not capable of remedy;

15.1.2. breaches a material term of this Agreement that is capable of remedy, and does not remedy that breach within 30 days of the terminating party giving notice to the other party to rectify the breach;

15.1.3. becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration and/or is unable to pay its debts as and when they fall due; or

15.1.4. ceases or threatens to cease conducting its business in the normal manner.

15.2.        Suspension

OPTIMOGOV may suspend the Client’s access to the Software without notice if any amount payable by the Client under this Agreement remains unpaid for 60 or more days.

15.3.        Other Rights not affected by Termination

Termination under this Clause 15 will be without prejudice to any other rights or remedies to which either party may be entitled at law.

15.4.        Software on Termination or Expiry

15.4.1. On expiry or termination of this Agreement, the Client’s access to the Software and the Documentation (including all copies of them) will immediately cease.

15.4.2. This Clause survives the expiry or termination of this Agreement.

15.5.        Return of Your Data

Upon written request by you made within thirty (30) days after the effective date of termination of the Services and at your cost, OPTIMOGOV will return your data in the format acceptable. After such 30- day period, OPTIMOGOV shall have no data in OPTIMOGOV’s systems or otherwise in OPTIMOGOV’s possession or under OPTIMOGOV’s control.

15.6.        Surviving Provisions

The Parties’ rights and obligations which, by their nature, would continue beyond the termination of this Agreement shall survive such termination, including the rights and obligations created by the following clauses: Fees and Payment for Purchased Services, Ownership, Proprietary Rights and Use of Data, Confidentiality, Disclaimer, Indemnification, Limitation of Liability, Refund or Payment upon Termination, Return of Your Data, Who You Are Contracting With, Notices, Governing Law and Jurisdiction, and General Provisions.

16.    FORCE MAJEURE

16.1.        Notice and suspension of obligations

16.1.1. If a party is affected or is likely to be affected by a Force Majeure Event, that party must, as soon as practicable after becoming aware of the Force Majeure Event, immediately give the other party notice of that fact including:

• full particulars of the Force Majeure Event;
• an estimate of its likely duration;
• the obligations or benefits affected by the Force Majeure Event and the extent of the effect of the Force Majeure Event on those obligations and/or benefits; and
• the steps taken to rectify the Force Majeure Event.
• The obligations under this Agreement of the party giving the notice (except the obligation to pay money) are suspended to the extent to which they are affected by the relevant Force Majeure Event as long as the Force Majeure Event continues.

16.2.        Effort to overcome

A party claiming a Force Majeure Event must use its best endeavours to remove, overcome or minimise the effects of that Force Majeure Event as quickly as possible. However, this does not require a party to settle any industrial dispute in any way it does not want to.

17.    DISPUTES

17.1.        Negotiation

If there is a dispute between the parties in connection with this Agreement, then, within 10 Business Days of a party giving the other notice of the dispute under this Clause 17, responsible officers of each of OPTIMOGOV and the Client must meet and use all reasonable endeavours acting in good faith to resolve the dispute.

17.2.        Escalation

If the dispute is not resolved within 15 Business Days of the meeting referred to in Clause 17.1, then the parties must first refer the dispute to the Managing Director or Chief Executive Officer / Project Sponsor of each party, who will attempt to resolve the dispute, and who may (but are not obliged to) agree to submit the dispute to an independent expert acceptable to both parties for determination. The cost of submission to that independent expert will be met equally by the parties.

17.3.        Decision to be binding

If a dispute is submitted to an independent expert, the parties must comply with all determinations made under Clause 17.2. Any person appointed to resolve the dispute under Clause 17.2 will sit as an expert and not as an arbitrator, and (except for cases of manifest error or fraud) determinations made under Clause 17.2 are not subject to appeal to any court or tribunal. A party will not commence court proceedings in relation to a dispute until the procedures in Clauses 17.1 and 17.2 have been exhausted.

18.    GENERAL PROVISIONS

18.1.        Taxes

If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies and includes payments for supplies relating to the breach or termination of and indemnities arising from this document.

18.2.        Assignment

Neither party may transfer any of its rights and liabilities under this Agreement without the written consent of the other party.

18.3.        Notices

18.3.1. Form and Service

A notice, consent, approval or other communication under this document must be signed on behalf of the party giving it, addressed to the party to whom it is to be given and may be:

• delivered to the last known address of a party on a business day between 9.00 am and 5.00 pm (at the place of delivery);
• sent to the last known address of a party by registered pre-paid post;

18.3.2. Time of Service

A notice is deemed to be given and received:

• if given in accordance with sub Clause 3.1.1 above, on the date of delivery;
• if given in accordance with sub Clause 3.1.2 above, one (1) clear business day after the day of posting to an address in UK posting;

18.3.3. Further assurance

Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of this document.

18.3.4. Continuing performance

• The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performance of this document.
• Any representation in this document survives the execution of any document for the purposes of, and continues after, performance of this document.
• Any indemnity agreed by any party under this document:
• constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement; and
• survives and continues after performance of this document.

18.3.5. Waivers

Any failure by any party to exercise any right under this document does not operate as a waiver, and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

18.3.6. Remedies

The rights of a party under this document are cumulative and not exclusive of any rights provided by law.

18.3.7. Severability

Any provision of this document that is invalid in any jurisdiction is invalid in that jurisdiction to that extent, without invalidating or affecting the remaining provisions of this document or the validity of that provision in any other jurisdiction.

18.3.8. Governing Law and Jurisdiction

• Clients specific law and Jurisdiction.

18.3.9. Use of Trademark

The Client will authorise OPTIMOGOV to use the trademarks on a non-exclusive basis for the Term without any fee in advertising, for promotional documents including websites to indicate that the Client is a licensed user of the Software (but not to be used as a trademark and subject to such reasonable conditions and stipulations which the client may require). The Client agrees to provide any artwork reasonably required for such purposes.

19.    HOSTING, AVAILABILITY, SECURITY and DISASTER RECOVERY

19.1.        As indicated in OPTIMOGOV’s Hosting and security documentation.

20.    USE OF THE SERVICES

20.1.        OPTIMOGOV Responsibilities

OPTIMOGOV shall:

• Provide support for Services to Customer per the OPTIMOGOV Service Level Agreement
• Use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:
• Planned downtime (in which case OPTIMOGOV shall give at least 48 hours’ notice via the Services or email. OPTIMOGOV shall schedule planned downtime to the extent practicable during the weekend hours agreed prior with the client.
• Any unavailability caused by circumstances beyond OPTIMOGOV reasonable control, including without limitation, events of force majeure, malicious attacks on the system, issues associated with
• Customer’s computing devices or local area networks, OPTIMOGOV inability to deliver Services because of Customer’s acts or omissions, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving OPTIMOGOV employees), Internet service provider connection failures or delays; and
• Provide the Services in accordance with applicable laws and government regulations.

20.2.        Customer Data

OPTIMOGOV shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of your data. Subject to the limited rights granted by you, Customer pursuant to these Terms, we acquire no right, title, or interest from you or your licensors under these Terms in or to your data, including any intellectual property rights therein. OPTIMOGOV shall perform a daily backup of all of your data.

If during the provision of the Services OPTIMOGOV has access to personal data of Customer and Users, OPTIMOGOV as data processor will always comply with applicable data protection laws, in particular, process such personal data solely for the purpose of providing the Services, to oblige its employees to maintain personal data confidential and to instruct them about the individual privacy provisions to adhere to. OPTIMOGOV shall maintain the technical and organisational measures required under the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) for protection of the security, confidentiality, and integrity of Customer’s personal data. OPTIMOGOV in its role as data processor acquires no right, title or interest from you or your licensors under these Terms in or to your data, including any Intellectual property rights therein. The Parties undertake at all times to comply with the applicable data protection laws and regulations, in particular the GDPR with regard to the collection, storage, use, and disclosure of any personal or sensitive information and data they collect, use, or otherwise access in connection with the Services and both parties shall oblige their personnel to observe those data secrecy requirements pursuant to the relevant applicable laws and regulations.

Legitimate data protection obligations of the Parties pertaining to possible commissioned data processing are set forth in the data processing agreement in accordance with Art. 28 GDPR between Customer (data controller) and OPTIMOGOV (data processor), which must be signed by both Parties and shall be attached to the applicable Order Form and which forms an integral part of the Agreement. The statutory and applicable data protection provisions, in particular Art. 82 GDPR, apply in the event of compensation of liability claims.

OPTIMOGOV shall not:

• Modify your data;
• Disclose your data except as compelled by law (Compelled Disclosure) or as expressly permitted in writing by you; or
• Access your data, except in order to provide the Services and prevent or address service or technical problems, or at your request in connection with customer support matters.

20.3.        Customer’s Responsibilities

Customer shall:

20.3.1. Be responsible for the Users’ compliance with these Terms and for any activities that occur under Users’ accounts;

20.3.2. Be responsible for the accuracy, quality, and legality of your data and of the means by which you acquired your data;

20.3.3. Use commercially reasonable efforts to prevent unauthorised access to or use of the Services and notify OPTIMOGOV promptly of any unauthorised access or use. Furthermore, in the event that Customer discovers any such unauthorised use or access, Customer shall immediately stop the unauthorised use or access. Customer acknowledges and agrees that in such cases, OPTIMOGOV may seek injunctive relief and any other remedies that may be available to it at law or in equity;

20.3.4. Use the Services only in accordance with these Terms and applicable state laws, ordinances, and federal laws and regulations;

20.3.5. Work cooperatively with OPTIMOGOV in receiving, approving, and accepting services. Customer shall access and use the Services with secured environment as per the guidelines provided by OPTIMOGOV;

20.3.6. Be on a supported version of OPTIMOGOV’s software and plan upgrades accordingly. Failure to do so may result in OPTIMOGOV upgrading Customer environment to a supported version as soon as their existing version ceases to be supported;

20.3.7. Implement, maintain, and update all necessary and proper procedures and software for safeguarding against computer infection, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties.

Customer shall not:

• Make the Services available to anyone other than authorised Users;
• Permit any third party to access the Services except as permitted by these Terms or in an Order Form;
• Customer shall not upload, post, reproduce, or distribute any data or material protected by privacy rights without first obtaining the permission of the owner of such rights;
• Sell, resell, rent or lease the Services;
• Modify, alter, or create derivative works based on the Services except as authorised by these Terms;
• Copy, frame, or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes;
• Reverse engineer the Services except to the extent permitted by law;
• Access the Services in order to:
• Build a competitive product or service, or
• Copy any features, functions, or graphics of the Services;
• Use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
• Use the Services to store or transmit Malicious Code;
• Interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
• Attempt to gain unauthorised access to the Services or their related systems or networks;
• Use the services in violation of any applicable state laws, ordinances, and federal laws and regulations; and
• Unreasonably withhold or delay any consent, approval, or acceptance required by the Order Form.

21.    SUPPORT AND TOTAL CARE SERVICES

• OPTIMOGOV’s SLA support caters to global clients – Technical support is provided to all of our clients through a dedicated OPTIMOGOV support department covering multiple time zones worldwide and including Europe, the Middle East, North America and Australasia.
• Online Web Portal – Access to a dedicated support and maintenance web portal will be provided.
• Phone – Support team can be contacted through a dedicated support number, and a member of our team will deal with your incident.
• E-mail – support@OPTIMOGOVsoftware.co.uk: your incident log will be attended by our team based on severity.
• Dedicated Account Manager – Contact (including phone and email)
• As standard, the SLA includes the following response times and resolution times for agreed support hours:
• Client Time Zone Specific SLA

22.    CHANGE CONTROL

22.1.        Change Request

If either party wishes to make changes to the signed off Additional Requirement Agreement in any way, then it shall submit to the other party written particulars of the proposed change. Please see Table 1 below

22.2.        Effect on Implementation Plan; Estimate

If the Client submits such written particulars, then OPTIMOGOV will investigate the effect on the Implementation Plan and this Agreement of implementing such change. If OPTIMOGOV is requested to proceed with the investigation OPTIMOGOV shall report the results thereof to the Client stating the effect of the proposed change in terms of technical feasibility and its impact and any other consequent changes to the Additional Requirement Agreement (including without limitation costs, the Implementation Plan, and the date for the delivery of the changes) and other matters it reasonably judges necessary within 15 working days of receiving notification from the Client. Lead times for work may vary.

22.3.        Agreement to Proceed

If the Client wishes to proceed with such change, it shall instruct OPTIMOGOV to proceed with the variation in writing within 7 working days of receiving the results of such investigation. Once agreed by the Client- OPTIMOGOV will endeavour to commence work within 5 working days. The variation and any other necessary consequential changes to the Software or the Implementation Plan or this agreement (including revised price or estimate) will be recorded in a change order. If OPTIMOGOV is requested to proceed, then the dates estimated in the Implementation Plan as the Delivery Dates shall (if appropriate) be extended by such number of days (if any) as OPTIMOGOV shall have notified the Client for such purpose.

22.4.        Overruns

If, however, OPTIMOGOV has reason to believe that any estimate of any time and materials charges which may be payable under the Change Order is likely to be exceeded or that it is likely that the Implementation Plan will not be complied with because of any delays, OPTIMOGOV shall immediately notify the Client.

22.5.        Cost of Development

For any customisation, OPTIMOGOV and the Client will use good faith efforts to discuss and agree to the cost of customisation and the number of unit-days required, as and when the Client requires a change in the Software based on the process described in Table 1. Please note if we need to carry out an initial analysis to get a proposal out then we will quantify the work required and quote for it appropriately.

22.6.        Terms of Software Customisation, Delivery, and Acceptance.

The Software changes will be delivered in accordance with the flow chart on Table 1 and the Additional Requirement Agreement. If such changes are requested or required, OPTIMOGOV and the Client shall agree on the timeframe for the delivery of such changes, the plan for implementing the Software changes, the required performance and related criteria for such changes, and the anticipated final costing for such changes.

22.7.        Failure to Customise Timely

If delivery of software customisation has not occurred by OPTIMOGOV and due solely to the fault of OPTIMOGOV 60 days after the estimated agreed delivery date, the Client shall be entitled to terminate the Additional Requirement Agreement immediately on written notice for material breach and will not be committed to proceed with it and will obtain a refund for any amounts paid pursuant to the Additional Requirement Agreement. In the event that the Client has suffered damages, loss of profits, goodwill or opportunity (whether reasonably foreseeable or not) in connection with the termination of Additional Requirement Agreement, and provides concrete evidence of those, OPTIMOGOV will be liable to pay compensation. The total aggregate maximum liability, including refund, shall not under any circumstances exceed 150% of the costs specified in the Additional Requirement Agreement.

22.8.        Failure to Customise Due to Client Action or Fault

If the Client aborts the project for any reason before completion, or any delay in complying with the above procedure is solely due to the Client’s fault, and not due to the specific poor performance of OPTIMOGOV that has been notified in writing by the Client and not been rectified within a reasonable time period OPTIMOGOV will be entitled to receive full payment for the additional costs that were provided free of charge or at a discounted rate (if there were any). OPTIMOGOV may nevertheless, if the Client so requests, continue to provide the Services with a view to achieving Final Acceptance as soon as reasonably possible in the circumstances, and the Implementation Plan will be adjusted accordingly. In such circumstances, the Client shall reimburse OPTIMOGOV for all reasonable direct costs incurred and demonstrated by OPTIMOGOV as a result of such delay.

23.    ACCEPTANCE TESTING

23.1.        Definition of Specifications

The Client will be responsible for defining acceptance test requirements and undertaking such tests. The Client may only reject Software, functionality or other deliverables set out in the Specification if it fails to comply with the Specification. Timeframe for Testing. The Client and OPTIMOGOV will agree reasonable timescales from the date of installation in which it must carry out the acceptance tests and inform OPTIMOGOV whether it accepts the customised Software, functionality or deliverables (giving full reasons and details of any defects). If OPTIMOGOV has not received such notice from the Client within 40 days of the date at which the tests were agreed to commence, the Software, functionality or other deliverables will be deemed to be accepted by the Client.

23.2.        Notification of Errors; Correction

If the Client has notified OPTIMOGOV that it cannot accept any Software, functionality, or deliverables, OPTIMOGOV will use all possible endeavours to correct any errors notified to it and shall redeliver the Software, functionality or other deliverables to the Client. The Client will then have a further period of 30 days for re-testing, after which it shall either accept the Software or further notify OPTIMOGOV that it is still unable to accept the Software. If after three attempts the Client is still unable to accept the software due to a material fault or error, which has been previously notified by the Client and the material fault or error is within OPTIMOGOV’s software, that OPTIMOGOV has been unable to correct the Client shall have the right to reject the Software and terminate the Additional Requirement Agreement for material breach. OPTIMOGOV shall refund to the Client all amounts paid to OPTIMOGOV in respect of any such rejected Software. In the event that the Client has suffered damages, loss of profits, goodwill or opportunity (whether reasonably foreseeable or not) in connection with the termination of Additional Requirement Agreement and provides concrete evidence of those, OPTIMOGOV will be liable to pay compensation. The total aggregate maximum liability, including refund, shall not under any circumstances exceed 150% of the costs specified in the Additional Requirement Agreement.

24.    SPECIAL DELIVERABLE COMMITMENT

As per clarification #4 & #5 post submission of the tender response – council will not bear any additional costs or face timeline risks related to this direct ECR integration. OPTIMOGOV will ensure to produce the final input and output required to ensure this process is seamless prior to going live and will ensure it is accepted by council.

Table 1: Change request process