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Terms and Conditions
LiveAgility Subscription Agreement ("Agreement")
Version 1.1, 5 November 2009

PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE "ACCEPT" BUTTON DISPLAYED, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT TO ACCESS THE SERVICE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK THE "DECLINE" BUTTON DISPLAYED AND YOU WILL NOT BE PROVIDED ACCESS TO LIVEAGILITY.

IF YOU ARE ENTERING INTO THIS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, AND AS SUCH, "YOU" OR "YOUR" SHALL HEREBY REFER TO THAT COMPANY OF OTHER LEGAL ENTITY IN THIS AGREEMENT. IF YOU DO NOT HAVE THE NECESSARY AUTHORITY AND/OR YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK THE "DECLINE" BUTTON DISPLAYED AND YOU WILL NOT BE PROVIDED ACCESS TO LIVEAGILITY.

This LiveAgility Subscription Agreement is made and entered into by and between Singularity Limited (hereinafter called "Singularity"), whose registered office is at 100 Patrick Street, Derry, Northern Ireland, BT48 7EL, UK of the one part and You, as disclosed, written or submitted online in relation to Your Order, of the other part (collectively "Parties").

Singularity and You hereby agree as follows:

In the case of any conflict between this Agreement and any other Schedule this Agreement shall control and govern, unless otherwise expressly stated to the contrary.

1.	Definitions
The following definitions will apply to this Agreement:

1.1 	"Activation Date" is date from which You were enabled to access LiveAgility.
1.2	"Your Data" means data, information or material provided or submitted by You or any User to Singularity or its agents in the course of utilising LiveAgility.
1.3	"Your Representative" means the Users designated by You as authorised to create User accounts, administer Your use of LiveAgility and otherwise represent You for the purpose of this Agreement.
1.4	"Order" means the information submitted by You upon first requesting access to LiveAgility or as subsequently agreed between the Parties, such information including number and type of Users, applicable subscription fees options and currency and means of payment.
1.5	"Singularity Content" means any documents, software, products, services, audio or visual information provided or made available to You in the course of using LiveAgility.
1.6	"LiveAgility" means the online, web-based software service of Singularity and its related documentation specified on the LiveAgility.com web site.
1.7	"Term" means a minimum of one year from the date of this Agreement and any longer period as a result of the renewal of Your subscription unless otherwise agreed in writing between the Parties.
1.8	"User" means a natural person, for whom You are fully liable for compliance with this Agreement, who is authorised to use LiveAgility and has been supplied User identification and password by You (or by Singularity at Your request). Any automated use or interaction is specifically excluded.

2.	LiveAgility

2.1	Singularity grants You a license to permit Your Users to access and use LiveAgility during the Term via the Internet under and subject to the terms of this Agreement. No other use of Singularity Content is permitted. You will maintain and will require Your Users to maintain all information contained in LiveAgility as Confidential Information (as defined in clause 9 below) of Singularity.

2.2	You are initially authorised to permit use by the number of Users listed in Your Order. You, by Your Representative, may add to the number of Users by contacting LiveAgility Customer Support by web interface, email or telephone subject to the payment of any applicable fees.  You will be bound by the instructions and authorisations provided by Your Representative.

2.3	Your licence and authorisation to use LiveAgility extends to such that is available at Activation Date. Singularity may, at its sole discretion, add new and separately priced functionality and/or features to LiveAgility for which it may vary or charge a supplemental fee in addition to that shown in Your Order. At Your option, You may add such new functionality and/or features to your use of LiveAgility upon payment of such additional fees and continuing observance of any additional terms and conditions that may be set out in any relevant Schedule.


3.	Use of LiveAgility and Responsibilities

3.1	Singularity shall or procure that its sub contractors shall (i) in addition to its confidentiality obligations under clause 9, not use, edit or disclose to any party other than You or Your Users Your Customer Data except as specifically permitted by the terms of this Agreement; (ii) maintain the security and integrity of LiveAgility and Your Data; and (iii) use commercially reasonable efforts to make LiveAgility generally available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Singularity shall give reasonable advance notice via LiveAgility and which Singularity shall schedule to the extent reasonably practicable outside of normal business hours (being 9.00 a.m. to 5.30 p.m. UK time Monday to Friday excluding UK Bank and Public Holidays); or (b) any unavailability caused by circumstances beyond Singularity's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes (other than those involving Singularity employees), computer, telecommunications, Internet service provider or hosting facility or hosting provider failures or delays involving hardware, software or power systems not within Singularity's possession or reasonable control, and network intrusions or denial of service attacks.

3.2	You are responsible for all activities that occur under Your User accounts. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your Data; (ii) prevent unauthorised access to, or use of, LiveAgility, and notify Singularity promptly of any such unauthorised use; and (iii) comply with all applicable laws in using LiveAgility

3.3	You shall use LiveAgility and Singularity Content solely for Your internal business purposes as contemplated by this Agreement and shall not: (i) licence, sublicence, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make LiveAgility or Singularity Content available to any third party, other than as contemplated by this Agreement; or (ii) modify or make derivative works based upon LiveAgility or Singularity Content for any purpose; or (iii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; or (iv) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or (v) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (vi) interfere with or disrupt the integrity or performance of LiveAgility or the data contained therein or block or disrupt any use or enjoyment of LiveAgility or Singularity Content  by any third party; or (vii) attempt to gain unauthorised access to LiveAgility or its related systems or networks; or (viii) attempt to access LiveAgility or Singularity Content by any means other than by the direct interaction of a User; or (ix) cause LiveAgility or Singularity Content to be transferred or otherwise made available to any entity or territory that may be subject to any export control regulations in the United Kingdom, European Union or any other jurisdiction to which You may be subject..

3.4	Singularity, at its sole discretion, may electronically monitor Your use of LiveAgility to (i) verify compliance with the provisions and restrictions of this Agreement, and (ii) properly operate, develop and improve LiveAgility.

3.5	Without written prior approval from Singularity You may not access LiveAgility if you are or become a competitor of Singularity or if your intention or purpose for access includes the monitoring of availability, performance or functionality of LiveAgility, or for any other benchmarking purpose or to reverse engineer LiveAgility in order to produce any product or service which has similar features to LiveAgility. Similarly You may not, without written prior approval from Singularity, undertake any penetration, vulnerability or other security review or test of LiveAgility.

3.6	You are responsible for acquiring and maintaining all licences and permissions necessary in respect of any third party equipment, software or other systems You may use in connection with LiveAgility.

4.	Free Trial and Payment terms

4.1	A the sole discretion of Singularity, You may be granted a limited licence to evaluate LiveAgility at no charge for a period of 30 calendar days, or such other longer period as Singularity may from time to time offer ("Free Trial"). You shall be subject to all terms and conditions of this agreement other than in relation to those clauses relating to payment of fees (rest of this clause 4) and provision of support (clause 5). Upon the expiry of the Free Trial you will have the opportunity to subscribe to LiveAgility. If You do not choose to purchase a subscription, Your rights to LiveAgility will cease.

4.2	If You apply to subscribe for LiveAgility beyond the period of any applicable Free Trial, and Your application is accepted by Singularity at its sole discretion, You agree to pay fees as set forth in Your Order from the Activation Date for the Term. All fees are payable monthly in advance by means of recurring charges to the account details or credit card You submitted unless otherwise agreed in writing between the Parties.

4.2	All fees and charges are not capable of cancellation and are nonrefundable. They are exclusive of all expenses, appropriate sales, Government imposts and value-added tax(es), which shall be paid by You at the rate and manner for the time being prescribed by law.

4.3	You agree to provide and maintain at all times complete and accurate contact and payment details and you agree that Singularity may share that information with third parties to verify that information and in order to process payment. Singularity reserves the right to terminate this Agreement in the event that You provide false or fraudulent information.

4.4	Notwithstanding any provision for late or non payment, Singularity may at its option, and without prejudice to any other remedy at any time after payment has become due and after seven days of You being so notified, terminate or temporarily suspend performance of this Agreement and applicable Schedule(s).

4.5	If Singularity becomes entitled to terminate the Agreement for any reason any sums then due to Singularity will immediately become payable in full.  All payments shall be made in the currency agreed in Your Order

4.6	All charges shall be made without deduction of any amount free and clear of any set off or counterclaims.


5)	Support

5.1	During the Term, and upon continued receipt of any fees due, Singularity may provide any applicable updates, new releases, hot fixes or other modifications (if any) to LiveAgility which it may make available from time to time.

5.2	Other than under a Free Trial, Your Representative may contact LiveAgility Customer Support to report issues and to request assistance in the use of LiveAgility. Such contact may be made by web interface, email or telephone as shown on the LiveAgility.com website. Singularity shall reasonably respond to any such request within a commercially reasonable timeframe. You understand that LiveAgility Customer Support may not provide any assistance if in its sole discretion it considers that such assistance would constitute professional consultancy services or user training.


6)	Warranty

6.1	Singularity warrants that it owns or has acquired rights to all proprietary interests in LiveAgility necessary to grant the licence set forth in this Agreement.

6.2	You warrant that You have the legal capacity and authority to enter into this Agreement and that You have not provided false or misleading information to Singularity concerning your identity, purpose of seeking this Agreement or payment details.

6.3	LiveAgility is provided on an "as-is" basis, and Singularity makes no warranty of any kind with respect to the provision of such service, its performance, its conformity to any user documentation, or otherwise.

6.4	EXCEPT AS EXPRESSLY PROVIDED HEREIN, SINGULARITY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SINGULARITY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7)	Intellectual Property Rights Indemnity

7.1	Singularity shall indemnify You against any claim that the normal use of LiveAgility infringes the intellectual property rights of any third party provided that Singularity is given immediate and complete control of such claim, that You do not prejudice Singularity's defence of such claim and the claim does not arise as a result of the use of LiveAgility in combination with any other equipment, software or programmes not approved or supplied by Singularity.  Singularity shall have the right to replace or modify or change LiveAgility so that the infringement will not exist, or remove LiveAgility involved and refund to You the price thereof. The foregoing states the entire liability of Singularity to You in respect of the infringement of the intellectual property rights of any third party.

7.2	You shall indemnify and hold harmless Singularity for any loss, costs or expenses suffered or incurred in connection with any claim, suit or proceeding brought against Singularity insofar as it is based on a claim that the manufacture, sale or licensing of anything delivered or provided hereunder and modified or altered or combined with any products, device or software not supplied by Singularity hereunder constitutes an infringement because of such modification, alteration or combination.
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8)	Termination

Notwithstanding any other term or condition of this Agreement and Schedules attached hereto, either party shall have the right to terminate this Agreement if the other party fails to perform, observe or is in material or continuing breach of any of its obligations under this Agreement.  Singularity shall have the right to terminate this Agreement if  (a) Singularity gives You 90 days notice of termination at its sole discretion; (b) You admit in writing Your inability to pay Your debts generally as they become due or You execute an assignment or similar document for the benefit of creditors; (c) You are involved in any legal proceedings concerning Your solvency, or You cease trading or commit an act of bankruptcy or are adjudicated bankrupt or enter into liquidation, whether compulsory or voluntary (other than for the purposes of a bona fide scheme of solvent amalgamation or reconstruction) or make an arrangement with Your creditors or petitions for an administrative order or have a receiver or manager appointed over all or any part of Your assets or generally become unable to pay Your debts as they fall due.  Any termination of this Agreement and Schedule(s) under this clause will be without prejudice to any other rights or remedies of either party under this Agreement and Schedule(s) or at law and will not affect any accrued rights or liabilities of the other party as of the date of termination.  Upon proper termination or expiry of this Agreement and Schedules, the provisions of this Agreement and Schedules which are expressly stated or implicitly intended to survive shall so survive.  All amounts owing to Singularity will become immediately due and payable.

9)	Confidential Information

9.1	In the absence of a Confidential Disclosure Agreement (as defined thereon) signed by both Parties, the Parties recognise that under this Agreement they may each receive trade secrets and confidential or proprietary information of the other party including but not limited to information concerning products, customers, business accounts, financial or contractual arrangements or other dealings, transactions or affairs, reports, recommendations, advice or tests, formulas, compilations, methods, drawings, processes or portions thereof.  All such information which is either confidential or stated at the time of disclosure to be confidential constitutes "Confidential Information".  The party receiving Confidential Information ("the Recipient") agrees not to divulge Confidential Information received from the other ("the Owner") to any of its employees who do not need to know it and to prevent its disclosure to access by any third party without the prior written consent of the Owner.  This obligation will survive the termination of this Agreement for a period of five years or until such earlier time as the Confidential Information concerned reaches the public domain other than through either party’s own default. Each party shall safeguard such information to the same extent that it safeguards its own Confidential information and in any event with not less than a reasonable degree of protection.

9.2	The Recipient shall be entitled to provide to third parties such information as is necessary for it to perform its obligations in relation to this Agreement subject to such third parties being bound by the terms herein, or as may be required by law.

9.3	The obligation of confidentiality shall not apply to information to the extent that it was already in the public domain (this shall not include training materials), or in the rightful possession of the other party, at the time of its disclosure, or which is disclosed as a matter or right by a third party or which passes into the public domain by acts other than the unauthorised acts of the other party.

9.4	Within ten (10) days of the expiration of any Agreement, each party shall destroy or return to the other party all originals and any copies of any Confidential Information of the other party (if any)  but the Parties shall be entitled to retain such copies as are required to comply with statutory and regulatory requirements regarding the keeping of records. Such copies shall remain subject to the obligations in this Clause.

10)	Limitations of Liability

10.1	NOTHING CONTAINED IN THIS AGREEMENT LIMITS EITHER PARTY’S LIABILITY TO THE OTHER IN THE EVENT OF DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF THAT PARTY OR ITS EMPLOYEES ACTING WITHIN THE COURSE OF THEIR EMPLOYMENT AND THE SCOPE OF THEIR AUTHORITY.

10.2	IN NO EVENT WILL SINGULARITY BE LIABLE FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL LOSSES OR DAMAGES, WHETHER FORESEEABLE OR NOT OR FOR LOST REVENUES OR PROFITS, LOSS OF OR DAMAGE TO GOODWILL, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE SOFTWARE OR SERVICES, LOST USE OR DATA, WORK STOPPAGE OR RE-RUN TIME, INACCURATE OUTPUT, COMPUTER FAILURE OR MALFUNCTION EVEN IF SINGULARITY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

10.3	SUBJECT ONLY TO 10.1 ABOVE, SINGULARITY’S LIABILITY TO YOU OR ANY OTHER PARTY FOR A CLAIM OF ANY KIND RELATED TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE, WHETHER FOR BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, TORT, NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED TO DIRECT LOSS AND MONETARY DAMAGES ONLY AND SHALL NOT EXCEED THE ACTUAL FEES RECEIVED BY SINGULARITY DURING THE PREVIOUS THREE MONTHS FROM YOU IN RELATION TO THIS AGREEMENT.

10.4	SINGULARITY IS ACTING ON BEHALF OF ITS SUPPLIERS AND SUB-CONTRACTORS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND/OR LIMITED OBLIGATIONS, WARRANTIES AND LIABILITY AS PROVIDED IN THIS AGREEMENT BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSE.

10.5	THE PARTIES HEREBY CONFIRM THAT THESE REMEDIES AND THE ABOVE LIMITATIONS ARE REASONABLE UNDER ALL THE CIRCUMSTANCES.

10.6	EXCEPT AS EXPRESSLY PROVIDED HEREIN, SINGULARITY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SINGULARITY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IN RELATION TO SERVICE AVAILABILITY OR ANY OTHER ATTRIBUTE RELATED TO ANY HOSTING SERVICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

11)	Data protection

Both Parties  agree to ensure that they  will at all times comply with the provisions and obligations imposed by the Data Protection Act 1998 and the Eight Data Protection Principles laid down by the European Community Data Protection Directive and the Parties agree to indemnify each other in respect of any unauthorised disclosure of personal data.  Without prejudice to the foregoing the Parties shall comply with all applicable data privacy laws and regulations and will implement and maintain appropriate technical organisational and other security measures to protect personal data required to be so protected against loss, destruction, alteration, unauthorized disclosure or access and against all unlawful forms of processing.  Each party must inform the other in writing of any change or corrections required to such data immediately the change occurs or it becomes aware of the error. Each party will co-operate fully with the other’s requests, to the extent required by law, for access to, correction of, and destruction of personal data in their possession.  The Parties will not use, disclose, or transfer across borders any personal data except to the extent necessary for the implementation of this Agreement.

12)	Force Majeure

Other than for a payment of money neither party will be liable to the other for any delay or failure to perform its obligations as a result of any cause beyond its reasonable control.

13)	Entire Agreement

This Agreement, together with applicable Schedule(s), constitutes the entire Agreement between the Parties in relation to its subject matter.  Each party confirms that it has not relied upon any representation not recorded in this Agreement.  This Agreement supersedes all proposals, representations, understandings and prior agreements whether oral or written and all other communications between Singularity and You relating thereto.

14)	Severability

In the event that any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable or any indications of the same are received by either of the Parties from any relevant competent authority, the Parties shall amend that provision in such reasonable manner as to achieve the intention of the Parties without illegality, or at the discretion of Singularity, such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect.

15)	Waiver

No delay or failure by either party in enforcing against the other party any term or condition of this Agreement and no partial exercise by either party of any right hereunder shall be deemed to be a waiver of any right of that party under this Agreement.

16)	Notices

Any notice to be served on either of the Parties under this Agreement shall be sent by pre-paid recorded delivery or registered post or by fax or by electronic mail to their principal place of business or registered office and shall be deemed to have been received by the addressee within five days of posting or three days if sent by facsimile transmission or by electronic mail to the correct facsimile number or correct electronic mail address of the addressee.

17)	Assignment

This Agreement is personal to You and You shall not assign, transfer, sub-contract or otherwise part with this Agreement or any right or obligation under it without the prior written consent of Singularity such consent not to be unreasonably with held or delayed. This Agreement is not intended to be for the benefit of and shall not be enforceable by any other person and neither party can declare itself a trustee of the rights under it for the benefit of any third party.  Singularity reserves the right to assign this Agreement to any entity at any time and to subcontract any or all of the provision of the Software to suitably qualified personnel or organisations.  In this event the rights and obligations of Singularity hereunder shall not be diminished.

18)	Jurisdiction

You irrevocably agree that this Agreement and all matters arising from it are governed by and construed in accordance with the laws of Northern Ireland whose Courts shall have exclusive jurisdiction over all disputes arising in connection with this Agreement.
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