This AGREEMENwT is made between Axco Insurance Information Services Limited whose registered office is at 39 Cornhill, London, EC3V 3NU ('Axco') and you ('Licensee') as described in the Order Form.

1. definitions

'Commencement Date' means the date specified as such in the Order Form

'Content' means the data supplied by Axco in relation to this Agreement and presented on any of the Platforms;

'Declaration Form' means a declaration form (if any) annexed to this Agreement as updated from time to time;

'Documentation' means any instruction manuals, user guides and other recorded matter in either printed or machine-readable form made available by Axco to the Licensee and the Users;

'Endorsement' means any amendment to the Order Form which is agreed between the parties from time to time and which is confirmed in writing using Axco’s approved form;

'External Users' means any risk managers and tied agents of the Licensee to whom the Licensee has granted a permitted sub-licence to Use any or all of the Licensed Package in accordance with this Agreement;

'Fees' means the fees payable by the Licensee to Axco set out in the Order Form;

'Group' means, in relation to the Licensee, each and any subsidiary or holding company of the Licensee from time to time hereinafter and each and any subsidiary of a holding company of the Licensee from time to time hereinafter.  The terms "holding company" and "subsidiary" shall be construed in accordance with section 736 and 736A of the Companies Act 1985, as amended;

'Intellectual Property' means patents, patent applications; copyrights, copyright applications and copyright registrations; database rights; trademarks, trademark applications, trademark registrations; trade secrets and all other intellectual property and proprietary information rights as may exist now or hereafter come into existence; all modifications, continuations, renewals and extensions of any of the foregoing; any of the foregoing arising under the laws of any country, state or jurisdiction in the world;

'Internal Users' means those employees of the Licensee and its Group who use or have access to the Licensed Package;

'Licensed Package' means the Platforms, Content and any Documentation provided in accordance with the licence granted under this Agreement;

'Order Form' means the subscription order form annexed to this Agreement as amended by any subsequent Endorsement;

'Platform' means each product and platform listed under 'Product Description' on the Order Form;

'Use' means the use of the Licence Package in accordance with this Agreement;

'Users' means the Internal Users and the External Users and any third party who has access to the Licensed Package through the Licensee whether or not such access is concurrent with that of other Users;

'Year' means each twelve calendar month period beginning on the anniversary of the Commencement Date.

2. licence

2.1 With effect from the Commencement Date and in consideration of the payment by the Licensee of the Fees, Axco hereby grants the Licensee and the Users a non-exclusive licence to Use the Licensed Package as updated by Axco from time to time in accordance with the terms of this Agreement for the period stated in the Order Form provided that:

(a) the Licensee shall not provide an information service which incorporates the Licensed Package (which expression shall include for the purposes of this clause 2 any part of any version of the Licensed Package) whether by sale, rental, lending or howsoever to any third party which is competitive with any part of the business carried on by Axco from time to time;

(b) where a maximum number of Users has been agreed between the parties, the Licensed Package may not be used by more than that number of Users; and

(c) the Licensee may not make available access to the Licensed Package to any third parties other than the Users authorised by Axco.

2.2 Only with Axco’s prior written consent may the Licensee grant a sub-licence to an External User to Use the Licensed Package provided that the Licensee procures that such External User gives its consent to be bound by the terms of this Agreement and the External User's use of the Licensed Package is limited strictly to Use by its own employees and the Licensed Package may not be accessed by any other third party.

2.3 The Licensee shall ensure that the Content shall not be integrated into any other database held by the Licensee or any External User without the prior written consent of Axco. The Licensee shall ensure that no External User shall hold any part of the Licensed Package on an intranet or other basis which permits the External User access to the Licensed Package by any means other than remotely accessing the Licensed Package held by the Licensee.

2.4 The Licensee or any External User may, with Axco’s prior written consent, add its own data to the Content (such additions being known as the ‘Licensee’s Work’) provided that the Licensee shall indemnify Axco for any loss or damage suffered by Axco whether directly or indirectly as a result of any Licensee's Work.

3. delivery

3.1 Subject to the terms of this Agreement, Axco will provide the Licensee with the Licensed Package (in such presentational format as may be agreed by Axco and the Licensee) accessible via a password protected web site maintained by Axco or using such other electronic media as agreed between the parties.

4. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

4.1 The Licensee acknowledges and agrees that Axco is the proprietor of all Intellectual Property in the Licensed Package and in all forms in which the Licensed Package is recorded or disseminated (whether or not to the Licensee). The Licensee further acknowledges and agrees that, to the extent that any additions, deletions or alterations made by Axco to the Licensed Package have resulted or will result in the subsistence of any new Intellectual Property, all such rights shall vest in Axco.

4.2 Axco acknowledges that the Licensee is the proprietor of any Intellectual Property in the Licensee’s Work.

4.3 Each party undertakes with the other that it shall not disclose any confidential information which it may have or acquire (whether oral, written or in any other form) as a result of or pursuant to this Agreement (and for the purposes of this clause, the Content and Documentation and any part of any version thereof shall be considered confidential information) including the terms of this Agreement, save that this clause shall not apply to the disclosure of information required to be disclosed by law, binding judgment, order or requirement of any court or other competent authority, disclosure in confidence to a party's professional advisers for a purpose reasonably incidental to this Agreement or information which comes into the public domain (other than as a result of breach of this clause). This clause shall survive termination of this Agreement howsoever caused.

5. FEES AND PAYMENT TERMS

5.1 The Licensee shall pay Axco the Fees set out in the Order Form (for the avoidance of doubt the Fees are exclusive of VAT or any other tax or duty that may be from time to time applicable).

5.2 The Fees shall be invoiced by Axco annually in advance and are payable within 30 days of the anniversary of the Commencement Date. If the Licensee fails to pay on the due date Axco may charge interest at a cumulative rate of 2% per month, accruing on a daily basis, and disable the Licensee's password until payment is made in full.

5.3 Where a maximum number of Users has been agreed between the parties, not later than 60 days before each anniversary of the Commencement Date (the 'Calculation Date'), the Licensee shall inform Axco in writing of the monthly average of Users, being the sum of the total number of Internal and any External Users in each month over the previous 12 month period preceding the Calculation Date divided by 12 (the 'Monthly Average'). If the Monthly Average exceeds any maximum number of Internal and any External Users on the Order Form and/or the Declaration Form for such 12 month period, Axco shall be entitled to invoice the Licensee for and the Licensee shall within 30 days of receipt of such invoice pay to Axco an additional sum calculated [pro rata] using Axco's standard pricing structure applicable for such 12 month period.

5.4 Axco shall review the Fees annually and may in its absolute discretion increase the Fees. The Licensee shall be given reasonable prior written notice of any such increase.

6. TERMINATION

6.1 This Agreement shall be for an initial term (‘Initial Term’) of one year, or other such term as shall be agreed in writing between the parties, from the Commencement Date, and shall, subject to sub-clauses 6.2, 6.3 and 6.4, be renewed automatically for successive Years thereafter.

6.2 Subject to the accrued rights of the parties, the Licensee may terminate this Agreement on the expiry of the Initial Term by giving written notice to Axco not less than 30 days prior to the expiry of the Initial Term and, in the absence of such notice, this Agreement shall be automatically renewed for a period of 12 months following the expiry of the Initial Term.

6.3 Subject to the accrued rights of the parties, the Licensee may terminate this Agreement after the Initial Term by giving written notice to Axco not less than 30 days prior to each anniversary of this Agreement, and if the Licensee gives such notice, the Agreement will terminate on such anniversary.

6.4 Subject to the accrued rights of the parties, either party may terminate this Agreement at any time by giving to the other notice in writing if the other party:- (a) is in material breach of any of the terms of this Agreement which, in the case of a breach capable of remedy, has not been so remedied within 30 days of notice specifying the breach and requiring its remedy; (b) there are instituted bankruptcy or insolvency proceedings against the Licensee, which are not vacated within 30 days from the date of filing; or (c) institutes voluntary bankruptcy or insolvency proceedings, or otherwise admits insolvency.

6.5 Within 14 days of termination of this Agreement howsoever caused the Licensee shall irrevocably delete, or at Axco's option return, all copies of the Licensed Package (and the Licensee shall make all reasonable endeavours to delete all back-ups thereof) and destroy, or at Axco's option return, all hard copies thereof in its possession and in the possession of any User and a duly authorised officer of the Licensee shall certify in writing to Axco that the Licensee has complied with this obligation.

7. WARRANTY AND DISCLAIMER

7.1 Axco warrants that it is the proprietor of the Intellectual Property in the Licensed Package. Axco further warrants that it has the right to license the Licensed Package and agrees to indemnify completely the Licensee in the event of any action brought or threatened against the Licensee based on an allegation that the Licensed Package infringes the intellectual property rights of any third party.

7.2 Subject to clause 2.2, the provision of the Licensed Package is provided for the Licensee’s use only. To the fullest extent permitted by law, Axco does not warrant or guarantee that Use of the Licensed Package will be uninterrupted or error free, that defects in the Licensed Package will be corrected or that files available for down loading from Axco’s web site, a network or contained in a CD-ROM or other computer media will be free of viruses or other code manifesting destructive properties.

7.3 The Content and amendments made thereto by Axco are compiled from sources which Axco, in its sole discretion, considers to be reliable and are expressions of their opinion. Although, Axco shall make all reasonable efforts to ensure the accuracy of the Content as amended from time to time, the Licensee acknowledges and accepts that the Licensed Package is provided ‘as is’.

7.4 Subject to clause 7.5 below, to the fullest extent permitted by law Axco, including any of its contractors, employees and agents, shall not be liable for any direct, indirect, incidental, special or consequential damages of any nature whatsoever (including without limitation damages for loss of business profits, business interruption, loss of programs or information) relating to: the Licensed Package or any results obtained from its use; the use or inability to use any programs, network, CD-ROMs or other media through which the Licensed Package is made available; or any claim attributable to any error, omission, or inaccuracy contained in the Licensed Package.

7.5 Save to the extent that Axco’s liability cannot be excluded or limited by law, the maximum liability of Axco, its employees, agents or contractors in connection with the Licensed Package shall not exceed the greater of the Fees payable (a) in the Year in which any claim for such direct losses was brought against Axco; or (b) in the last Year in which the Licensee licensed the Licensed Package from Axco under this Agreement, where the Licensee has ceased to license the Licensed Package at the time of making any claim.

7.6 Axco will employ reasonable security and virus protection measures to protect the integrity of the Licensed Package.

8. INDEMNITY

8.1 The Licensee expressly agrees that the use of the Licensed Package and any web-site or network or other media through which the Licensed Package is made available, is at the Licensee’s sole risk and responsibility and the Licensee agrees to indemnify Axco, its employees, contractors and agents from and against any and all claims, damages and expenses (including any reasonable legal fees) arising from the use by any Users of the Licensed Package or information obtained from or other results of its use. This indemnity will not apply in situations where Axco's liability is not capable of being excluded under clause 7.4 above.

9. GENERAL

9.1 This Agreement, including the Order Form, Declaration Form, any subsequent Endorsement and any agreement relating to customisation of the Licensed Package between Axco and the Licensee, represent the entire agreement between the parties in relation to the subject matter of this Agreement and supersedes any previous agreement whether written or oral between all or any of the parties in relation to that subject matter.

9.2 Except as expressly stated in this Agreement and to the extent permissible by law, all terms, conditions, warranties, undertakings and representations implied by statute, common law, custom, trade usage or otherwise are expressly excluded.

9.3 If any part of any provision of this Agreement shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable.

9.4 No amendment or variation of the terms of this Agreement or waiver or release of any rights in connection with this Agreement shall be effective unless it is made or confirmed in writing by both parties.

9.5 This Agreement shall be construed in accordance with English law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English courts to settle any disputes which may arise in connection with this Agreement.

9.6 This Agreement may only be relied on by the parties to it and this Agreement shall not be directly or indirectly enforceable by any third party pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

© Axco Insurance Information Services Ltd 2009