Software License Agreement

IMPORTANT – READ CAREFULLY PRIOR TO DOWNLOADING OR ORDERING ANY SOFTWARE FROM THIS WEBSITE

This licence agreement (Licence) is a legal agreement between you (Licensee or you) and OpenGenius Limited of Tec Marina, Terra Nova Way, Penarth, CF64 1SA (Licensor, us or we) for:

BACKGROUND

(a) We are OpenGenius Limited, a company registered in England and Wales (company registration number 05653541) and our registered office is Tec Marina, Terra Nova Way, Penarth, CF64 1SA.

(b) We are the legal and beneficial owners of the Software and Documents.

(c) We license use of the Software and Document to you on the basis of the terms set out in this Licence. We do not sell the Software or Documents to you. We remain the owners of the Software and Documents at all times.

OPERATING SYSTEM REQUIREMENTS: THE REQUIREMENTS FOR USE OF THIS SOFTWARE ARE SET OUT ON THE WEBSITE. PLEASE CHECK TO ENSURE THAT YOUR OPERATING SYSTEM IS CAPABLE OF SUPPORTING IT BEFORE YOU ACCEPT THIS LICENCE AND DOWNLOAD THE SOFTWARE.

IMPORTANT NOTICE TO ALL USERS:

You should print a copy of this Licence for future reference.

1. GRANT AND SCOPE OF LICENCE

1.1 In consideration of payment by you of the agreed licence fee and you agreeing to abide by the terms of this Licence, we hereby grant to you a non-exclusive, non-transferable licence to use the Software and the Documents in the UK on the terms of this Licence.

1.2 You may:

(a) download, install and use the Software for your personal purposes (if you are a consumer) or your internal business purposes (if you are a business) only:

(i) on one central processing unit (CPU) if the Licence is a single-user licence or the Software is for single use; or

(ii) if the Licence is a multi-user or network licence, by the number of concurrent users agreed between you and us;

(b) provided you comply with the provisions in clause 2, make up to one copy of the Software for back-up purposes only;

(c) receive and use any free supplementary software code or update of the Software incorporating “patches” and corrections of errors as may be provided by us from time to time (“Maintenance Releases”); and

(d) use any Documents in support of the use permitted under clause 1.2 and make up to one copy of the Documents as are reasonably necessary for its lawful use.

2. RESTRICTIONS

Except as expressly set out in this Licence or as permitted by any local law, you undertake:

(a) not to copy the Software or Documents except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;

(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documents;

(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;

(d) not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities:

(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and

(ii) is not unnecessarily disclosed or communicated without our prior written consent to any third party; and

(iii) is not used to create any software which is substantially similar to the Software;

(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;

(f) not to provide or otherwise make available the Software in whole or in part, in any form to any person other than your employees without prior written consent from us;

(g) to comply with all applicable technology control or export laws and regulations.

3. YOUR ADDITIONAL OBLIGATIONS

3.1 You must comply with:

(a) the terms of our Ayoa Website Terms of Use Policy; AND

(b) the terms of our Ayoa Website Acceptable Use Policy

3.2 You must not:

(a) employ any mechanisms, software or scripts when using the Software;

(b) block, overwrite, modify or copy any contents of the Software or Ayoa Website; or

(c) perform any actions which impair the operability of the Sotware or Ayoa Website, including fair usage of the file storage and sharing of information with other users on the Ayoa Website. We may determine in our sole discretion that you are using file storage to such an extent that it is limiting resources for other users and in such instances, we reserve the rights to terminate this Licence.

4. LICENCE FEE

4.1 We offer a 7-day free trial of the Software so you can ensure that it satisfies your requirements and that it is compatible with your operating systems. After this period has expired you may continue to use a limited version of the Software through our basic free plan. You may only continue to use the full version of the Software if you pay the licence fee. We also offer various ‘add-on packages’ to the Software (“Licence Fees”).

4.2 Upon payment of the Licence Fee and download of the Software at the expiry of the 7-day free trial you will no longer have the right to change your mind and cancel the Licence and receive a refund. If you wish to cancel the Licence after this time then you must terminate the Licence in accordance with clause 10.

4.3 The Licence Fees are displayed on the Ayoa Website together with details of the credit and debit cards accepted (“Payment Method”). We reserve the right to amend the Licence Fees and acceptable Payment Methods from time to time. Where any alteration to the Licence Fees is due to take place we will notify you by email.

4.4 The Licence Fees are payable monthly or annually (depending on the option selected) in advance. You are not entitled to claim any set-off or deduction.

4.5 On registering your Ayoa account on the Ayoa Website and selecting the Software you wish to download; you authorise us to take payment for the monthly or annual Licence Fees at the then current rate published on the Ayoa Website using the Payment Method you have provided to us. We shall provide you with an invoice for the Licence Fees by email.

4.6 You must notify us immediately upon any change to your name, address and/or Payment Method.

4.7 If you are resident in the United Kingdom all Licence Fees stated on the Ayoa Website include VAT.

4.8 If you are resident outside of the United Kingdom you may be liable to pay additional VAT and local taxes.

4.9 Your Licence will be extended and renewed automatically and we shall continue to take payment of the Licence Fees using your selected Payment Method until you cancel it or we terminate it in accordance with the terms of this Licence.

4.10 If we are unable to take payment in advance from you using your chosen Payment Method we shall be entitled to suspend your access to the Software until payment is made. In addition to suspending your access to the software we may also charge you interest on the overdue Licence Fee payment in accordance with clause 4.11 and claim the costs from you in accordance with 4.12.

4.11 If you do not pay the Licence Fee to us when it is due then we may charge interest to you on the overdue amount at the rate of 4% a year above the base lending rate of the Bank of England from time to time. This interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with any overdue amount.

4.12 If we incur any bank charges or other costs as a result of our attempt to take payment using your chosen Payment Method and which is rejected by your bank or other credit facility, we shall be entitled to claim those costs from you.

4.13 When a customer makes changes to their subscription, a top-up payment may be required. The customer pays the top-up payment minus any existing credit on the account. If the amount of existing credit is larger than the top-up payment, the customer will forfeit the remaining credit if the credit was gifted to the customer as part of a previous offer.

5. NEW VERSION

5.1 From time to time we may create any new version of the Software which we publicly market and offer for purchase under licence in the normal course of our business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product (“New Version”).

5.2 We also reserve the right to modify the Software to add or remove features and functionalities as we deem appropriate but which shall not constitute a New Version.

6. MAINTENANCE RELEASES

6.1 From time to time we shall provide Maintenance Releases which do not constitute a New Version (“Maintenance Release”).

6.2 We shall provide you with all Maintenance Releases generally made available to our customers.

6.3 You shall install all Maintenance Releases as soon as reasonably practicable after receipt.

6.4 We warrant that the Maintenance Release will not adversely affect the then existing facilities or functions of the Software.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 You acknowledge that all intellectual property rights in the Software and the Documents anywhere in the world belong to us, that rights in the Software are licensed (not sold) to you, and that you have no rights in, or to, the Software or the Documents other than the right to use them in accordance with the terms of this Licence.

7.2 You acknowledge that you have no right to have access to the Software in source code form.

8. LIMITATION OF LIABILITY IF YOU ARE A BUSINESS USER

8.1 You acknowledge that the Software has not been developed to meet your individual requirements and that the availability of certain features and functions may vary between the particular Software application you select and the device on which you choose to operate the Software, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documents meet your requirements.

8.2 If you are a business customer, we only supply the Software and Documents for internal use by your business, and you agree not to use the Software or Documents for any re-sale purposes.

8.3 We shall not be liable for damage which you could have avoided by installing a Maintenance Release or by your failure to follow installation instructions or to have the minimum operational system in place.

8.4 We shall not in any circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Licence for:

(a) loss of profits, sales, business, or revenue;

(b) business interruption;

(c) loss of anticipated savings;

(d) loss or corruption of data or information;

(e) loss of business opportunity, goodwill or reputation; or

(f) any indirect or consequential loss or damage.

8.5 Other than the losses set out in condition 8.4 (for which we are not liable), our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Licence Fee. This maximum cap does not apply to condition 8.6.

8.6 Nothing in this Licence shall limit or exclude our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation;

(c) any other liability that cannot be excluded or limited by English law.

8.7 This Licence sets out the full extent of our obligations and liabilities in respect of the supply of the Software and Documents. Except as expressly stated in this Licence, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Software and Documents which might otherwise be implied into, or incorporated in, this Licence whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.

9. LIMITATION OF LIABILITY IF YOU ARE A CONSUMER USER

9.1 You acknowledge that the Software has not been developed to meet your individual requirements and that the availability of certain features and functions may vary between the particular Software application you select and the device on which you choose to operate the Software, and that it is therefore your responsibility to ensure that the facilities and functions of the Software as described in the Documents meet your requirements.

9.2 If you are a consumer, we only supply the Software and Documents for domestic and private use. You agree not to use the Software and Documents for any commercial, business or re-sale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

9.3 We are only responsible for loss or damage you suffer that is a foreseeable result of our breach of this Licence or our negligence up to the amount specified in condition 9.4, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if they were an obvious consequence of our breach or if they were contemplated by you and us at the time we granted you the Licence.

9.4 We shall not be liable for damage which you could have avoided by installing a Maintenance Release or by your failure to follow installation instructions or to have the minimum operational system in place.

9.5 Our maximum aggregate liability under or in connection with this Licence whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the Licence Fee. This does not apply to the types of loss set out in condition 9.6.

9.6 Nothing in this Licence shall limit or exclude our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation; or

(c) any other liability that cannot be excluded or limited by English law.

10. TERMINATION

10.1 We may terminate this Licence immediately by written notice to you if you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so. A material breach includes (but is not limited to):

(a) Failure to pay the Licence Fees; and

(b) Failure to comply with the additional obligations under clause 3.

10.2 You may terminate this Licence at any time by notifying us in writing in accordance with clause 11. You will not be entitled to a refund for any Licence Fees paid prior to the date of termination unless:

(a) We have suspended supply of the Software for technical reasons or you are experiencing ongoing technical problems with the Software which we are unable to fix within a reasonable period of time;

(b) We have told you about an upcoming change to our Software, as provided in clause 5.2 and you do not wish to proceed; and

(c) We have told you about an error in the price or description of the Software and you do not wish to proceed.

10.3 If you are a consumer then you have a legal right to change your mind within 14 days and receive a refund, however, once you have downloaded the Software and paid the Licence Fee following your 7-day free trial period under clause 4.1 then you will have lost the right to change your mind and receive a refund.

10.4 For the avoidance of doubt, Maintenance Releases and Software modifications under clause 5.2 shall not constitute termination of the Licence.

10.5 Upon termination for any reason:

(a) all rights granted to you under this Licence shall cease;

(b) you must immediately cease all activities authorised by this Licence;

(c) you must immediately pay to us any sums due to us under this Licence; and

(d) you must immediately delete or remove the Software from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Software and Documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.

11. COMMUNICATIONS BETWEEN US

11.1 If you are a consumer, if you wish to contact us in writing, or if any condition in this Licence requires you to give us notice in writing, you can send this to us by e-mail or by pre-paid post to OpenGenius Limited at Tec Marina, Terra Nova Way, Penarth, CF64 1SA or contact@ayoa.com. We will confirm receipt of this by contacting you in writing, normally by e-mail.

11.2 If we have to contact you or give you notice in writing, we will do so by e-mail or by pre-paid post to the address you provide to us when you register your Ayoa account for the Software.

11.3 If you are a business customer, please note that any notice given by you to us, or by us to you, will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

12. EVENTS OUTSIDE OUR CONTROL

12.1 We cannot guarantee continual availability of the Ayoa Software. We shall nonetheless endeavour to keep interruptions to a minimum but we may have to temporarily suspend access to the Software to deal with technical problems or make minor technical changes. We will use reasonable endeavours to restore access to the Ayoa Software with minimal delay but will not accept liability for any lost, corrupted or destroyed data as a result of any suspension or interruption.

12.2 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Licence that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in condition 12.3.

12.3 An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation failure of public or private telecommunications and internet networks.

12.4 If an Event Outside Our Control takes place that affects the performance of our obligations under this Licence:

(a) our obligations under this Licence will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control; and

(b) we will use our reasonable endeavours to find a solution by which our obligations under this Licence may be performed despite the Event Outside Our Control.

13. HOW WE MAY USE YOUR PERSONAL INFORMATION

We will use your personal information as set out in our privacy policy.

14. OTHER IMPORTANT TERMS

14.1 We may transfer our rights and obligations under this Licence to another organisation, but this will not affect your rights or our obligations under this Licence.

14.2 You may only transfer your rights or your obligations under this Licence to another person if we agree in writing.

14.3 If you are a business customer, this Licence and any document expressly referred to in it constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter. You agree that you shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Licence or any document expressly referred to in it. You agree that you shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this in this Licence or any document expressly referred to in it.

14.4 If we fail to insist that you perform any of your obligations under this Licence, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

14.5 Each of the conditions of this Licence operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.

14.6 If you are a consumer, please note that this Licence, its subject matter and its formation, are governed by English and Welsh law. You and we both agree to that the courts of England and Wales will have non-exclusive jurisdiction. However, if you are a resident of Northern Ireland you may also bring proceedings in Northern Ireland, and if you are resident of Scotland, you may also bring proceedings in Scotland.

14.7 If you are a business customer, this Licence, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English and Welsh law. We both irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.