Interpretation

The definitions and rules of interpretation in this clause apply in these Conditions.

1. Definitions:

   “Acceptable Use Policy” the conditions for use of Make Time Count by the Authorised Users

   “Agreement” the Order Form and these Conditions;

   “Authorised Users” those employees and independent contractors of the Customer who are entitled to use Make Time Count under this Agreement, as further described in clause 2.4.

   “Business Day” any day which is not a Saturday, Sunday or public holiday in the UK.

   “Conditions” these terms and conditions, as amended from time to time in accordance with clause 19,

   “Confidential Information” information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 8.5 or clause 8.6.

   “Customer” the person or firm who licenses Make Time Count from Make Time Count, as set out in the Order Form.

   Customer Data the data inputted into the information fields of Make Time Count by the Customer, by Authorised Users, or by Make Time Count on the Customer’s behalf.

   Effective Date as set out in the Order Form.

   Fees the fees payable to Make Time Count, as set out in the Order Form.

   Insolvency Event in relation to either party, that party: (a) is unable to pay its debts or becomes insolvent or bankrupt; (b) is the subject of an order made or a resolution passed for its administration, winding-up or dissolution; (c) is subject to any proceedings for the appointment of an administrative or other receiver, manager, trustee, liquidator, administrator, or similar officer over all or any substantial part of its assets; (d) proposes or enters into any composition or arrangement with its creditors generally (except for the purposes of a bona fide solvent amalgamation, reconstruction or re-organisation (provided this does not materially reduce the assets of that party)); or (e) is subject to an analogous event to any of the foregoing in any jurisdiction.

   Make Time Count Make Time Count Online Limited (registered in England and Wales with company number 07937938).

   Maintenance Events as defined in clause 2.2

   Maintenance and Support any error corrections, updates and upgrades that Ludic may provide or perform with respect to Make Time Count and Platform Services, as well as any other support or training services provided to the Customer under this Agreement.

   Normal Business Hours 09.00 am to 6.00 pm local UK time, each Business Day.

   Order Form” the order form setting out the details of your licence.

   party either Make Time Count or the Customer, together the “parties“

   Platform Services the services that allow Authorised Users to access and use Make Time Count.

   Services the Platform Services and/or Maintenance and Support as applicable,

   Make Time Count Make Time Count’s proprietary online tools and techniques to make large scale decision making and collaboration possible across time and distance and known as “Make Time Count”, which are incorporated in applications made available to the Customer and includes any error corrections, updates, upgrades, modifications and enhancements provided to the Customer under this Agreement.

   Virus anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

2. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to writing or written includes faxes and e-mail.
8. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.
9. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
10. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

Platform Services, Maintenance and Support

1. Platform Services, Maintenance and Support
2. Maintenance of the Platform Services that may require interruption of the Platform Services (“Maintenance Events”) shall not be performed during Normal Business Hours unless such interruption arises from the acts or omissions of Make Time Count’s own hosting provider. Make Time Count may interrupt the Services to perform emergency maintenance during the daily window of 10.00 pm to 2.00 am UK time. In addition, Make Time Count may interrupt the Platform Services outside Normal Business Hours for unscheduled maintenance, provided that it has given the Customer at least three days’ advance notice. Any Maintenance Events which occur during Normal Business Hours, and which were not requested or caused by the Customer, shall be considered downtime for the purpose of service availability measurement. Make Time Count shall at all times endeavour to keep any service interruptions to a minimum.
3. Make Time Count shall provide at least a 99% uptime service availability level or, if lower, the uptime service availability level that Make Time Count’s own hosting contractually commits to provide to Make Time Count. The Customer is responsible for its own internet access and Make Time Count accepts no responsibility for any interruptions arising from the Customer network issues.

   Availability does not include Maintenance Events as described above, Customer-caused or third party-caused outages or disruptions, or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 12.

4. In relation to Authorised Users:
   1. the Customer’s access to the Platform Services shall be limited to the number of individual Authorised Users set out in the Order Form, being employees or independent contractors of the Customer;
   2. the Customer shall maintain a written list of current Authorised Users of Make Time Count, and the Customer shall provide such list to Make Time Count as may be reasonably requested by Make Time Count from time to time;
   3. the Customer shall ensure that each Authorised User keeps a secure password for his use of Make Time Count, that such password is changed no less frequently than monthly and that each Authorised User keeps his password confidential;
   4. the Customer shall procure that each Authorised User agrees to and complies with the Acceptable Use Policy;
   5. Make Time Count may audit Make Time Count regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at Make Time Count’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business; and
   6. if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to Make Time Count’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.
5. In relation to Make Time Count:
   1. Make Time Count hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow Authorised Users to access Make Time Count through the Platform Services and to use Make Time Count solely for the Customer’s internal business purposes;
   2. Make Time Count hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to allow Authorised Users to access Make Time Count through the Platform Services and to use Make Time Count solely for the Customer’s internal business purposes;
   3. the rights provided under this clause 2.5 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless specifically stated otherwise in the Order Form;
   4. the Customer shall not:
      
      1. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of Make Time Count except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
      2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of Make Time Count, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
      3. access all or any part of Make Time Count or Platform Services in order to build a product or service which competes with Make Time Count and/or the Services; or
      4. use Make Time Count or Platform Services to provide services to third parties; or
      5. subject to clause 17.1, transfer, temporarily or permanently, any of its rights under this Agreement, or
      6. attempt to obtain, or assist third parties in obtaining, access to Make Time Count, other than as provided under this clause 2.5.4; and
   5. the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, Make Time Count and notify Make Time Count promptly of any such unauthorised access or use.

Customer Data

1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
2. Make Time Count shall develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least weekly full back-ups and daily incremental back-ups. In the event of data loss, Make Time Count shall provide recovery services to try to restore the most recent back-up.
3. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Make Time Count to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Make Time Count in accordance with the archiving procedure described in clause 3.2 above. Make Time Count shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Make Time Count to perform services related to Customer Data maintenance and back-up).
4. If Make Time Count processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Make Time Count shall be a data processor and in any such case:
   1. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Make Time Count so that Make Time Count may lawfully process the personal data in accordance with this Agreement on the Customer’s behalf;
   2. Make Time Count shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time;
   3. Make Time Count shall process the personal data solely for the purpose of performing its obligations under this Agreement;
   4. Make Time Count shall not transfer or permit the transfer of any personal data outside of the European Economic Area;
   5. each party shall notify the other party promptly of any unauthorised or non-compliant loss, access or other processing of personal data and of any complaints relating to the processing of personal data; and
   6. each party shall notify the other party promptly of any unauthorised or non-compliant loss, access or other processing of personal data and of any complaints relating to the processing of personal data; and

Make Time Count’s obligations

1. Make Time Count undertakes that the Services will be performed with reasonable skill and care.
2. The undertaking at clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of Make Time Count contrary to Make Time Count’s instructions or modification or alteration of Make Time Count by any party other than Make Time Count or Make Time Count’s duly authorised contractors or agents.
3. If Make Time Count does not conform with any specification provided by Make Time Count to the Customer in writing, Make Time Count will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 4.1. Notwithstanding the foregoing, Supplier does not warrant that the Customer’s use of Make Time Count and the Services will be uninterrupted or error-free.
4. This Agreement shall not prevent Make Time Count from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this Agreement.

Customer’s obligations

1. The Customer shall:
   1. provide Make Time Count with:
      
      1. all necessary co-operation in relation to this Agreement; and
      2. all necessary access to such information as may be required by Make Time Count; in order to render the Services, including but not limited to Customer Data, security access information and software interfaces to the Customer’s other business applications;
   2. provide such personnel assistance as may be reasonably requested by Make Time Count from time to time; and
   3. comply with all applicable laws and regulations with respect to its activities under this Agreement.

Charges and payment

1. The Customer shall pay agreed Fees to Make Time Count. For standard users our services are and will remain free to use
2. Make Time Count shall invoice the Customer in the manner and frequency set out in the Order Form or otherwise monthly as of the last day of each month for all Services performed by Make Time Count during that month. Each invoice is due and payable 30 days from receipt of invoice. If Make Time Count has not received payment within five days after the due date, and without prejudice to any other rights and remedies of Make Time Count:
   1. Make Time Count shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
   2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSCB plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

Proprietary rights

1. The Customer acknowledges and agrees that Make Time Count and/or its licensors own all Intellectual Property Rights in Make Time Count and the Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of Make Time Count, Services or any related documentation.
2. Make Time Count confirms that it has all the rights in relation to Make Time Count that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

Confidentiality

1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not include information that:
   1. is or becomes publicly known other than through any act or omission of the receiving party; or
   2. was in the other party’s lawful possession before the disclosure; or
   3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
   4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
   5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
2. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
4. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
5. The Customer acknowledges that Make Time Count and the Services constitute Make Time Count’s Confidential Information.
6. Make Time Count acknowledges that the Customer Data is the Confidential Information of the Customer.
7. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
8. This clause 8 shall survive termination of this Agreement, however arising.

Indemnity

1. The Customer shall defend, indemnify and hold harmless Make Time Count against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of Make Time Count or Services save to the extent that any of the foregoing arise out of or in connection with any defect in title to the Intellectual Property Rights in Make Time Count and provided that:
   1. the Customer is given prompt notice of any such claim;
   2. Make Time Count provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
   3. the Customer is given sole authority to defend or settle the claim.
2. Make Time Count shall defend the Customer, its officers, directors and employees against any claim that Make Time Count infringes any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
   1. Make Time Count is given prompt notice of any such claim;
   2. the Customer provides reasonable co-operation to Make Time Count in the defence and settlement of such claim, at Make Time Count’s expense; and
   3. Make Time Count is given sole authority to defend or settle the claim.
3. In the defence or settlement of the claim, Make Time Count may obtain for the Customer the right to continue using Make Time Count, replace or modify Make Time Count so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Agreement without liability to the Customer. Make Time Count shall have no liability if the alleged infringement is based on:
   1. a modification of Make Time Count by anyone other than Make Time Count; or
   2. the Customer’s use of Make Time Count in a manner contrary to the instructions given to the Customer by Make Time Count; or
   3. the Customer’s use of Make Time Count after notice of the alleged or actual infringement from Make Time Count or any appropriate authority.
4. The foregoing and clause 10.4.2 state the Customer’s sole and exclusive rights and remedies, and Make Time Count’s entire obligations and liability, for patent, copyright, database or right of confidentiality infringement.

Limitation of liability

1. This clause 10 sets out the entire financial liability of Make Time Count (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
   1. arising under or in connection with this Agreement;
   2. in respect of any use made by the Customer of the Services and/or Make Time Count or any part of them; and
   3. in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
2. Except as expressly and specifically provided in this Agreement:
   1. the Customer assumes sole responsibility for results obtained from the use of Make Time Count and the Services by the Customer, and for conclusions drawn from such use. Make Time Count shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Make Time Count by the Customer in connection with the Services, or any actions taken by Make Time Count at the Customer’s direction; and
   2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
3. Nothing in this Agreement excludes the liability of Make Time Count:
   1. for death or personal injury caused by Make Time Count’s negligence; or
   2. for fraud or fraudulent misrepresentation.
4. Subject to clause 10.3:
   1. Make Time Count shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement; and
   2. Make Time Count’s total aggregate liability in contract (including in respect of the indemnity at clause 9.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to an amount equal to the price paid for the Services during the 12 months preceding the date on which the claim arose.

Term and termination

1. This Agreement shall commence on the Effective Date and shall continue for the period set out in the Order Form or if no such period is specified a period of 6 months, unless otherwise terminated as provided in this clause 11 (in each case the “Initial Term”). After such Initial Term, this Agreement shall automatically renew for six monthly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.
2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
   1. the other party commits a material breach of any term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
   2. the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement; or
   3. the other party suffers an Insolvency Event;
3. On termination of this Agreement for any reason:
   1. all licences granted under this Agreement shall immediately terminate;
   2. each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
   3. Make Time Count may destroy or otherwise dispose of any of the Customer Data in its possession unless Make Time Count receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Make Time Count shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Make Time Count in returning or disposing of Customer Data; and
   4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

Force majeure

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Make Time Count or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this Agreement by giving 30 days’ written notice to the other party.

Waiver

1. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
2. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law

Severance

1. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force
2. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Entire agreement

1. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
2. Each party acknowledges that in entering into this Agreement it does not rely of, and 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 Agreement.
3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
4. Nothing in this clause shall limit or exclude any liability for fraud.

Assignment

1. The Customer shall not, without the prior written consent of Make Time Count, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
2. Make Time Count may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

No partnership or agency

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

Third party rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

Notices

1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party or sent by e-mail to such address as may have been notified by that party for such purposes.
2. A notice delivered by hand shall be deemed to have been received when delivered (or, if delivery is not in business hours, at 9.00 am on the first working day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail (where there is no bounce-back indicating non-receipt) shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender), or if the recipient has an automated “out of office” reply, at the time the out of office ceases to apply.

Governing law

This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.

Jurisdiction

The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).