(1) All Communications T/As Zest4

(1) All Communications T/as Zest4

(2) <PARTNER / CUSTOMER NAME>

VSMART™ FROM ZEST4 CUSTOMER AGREEMENT

THIS AGREEMENT is made the day of 2016

BETWEEN:

(1) All Communications Limited a company registered in England and Wales under number 07983353 whose registered office is at 308 Moseley Rd, Manchester, M19 2LH

(2)<Name of Customer> a company registered in <Country of Registration> under number <Company Registration Number> whose registered office is at <Registered Office> (“the Customer”).

WHEREAS:

1. Zest4 in conjunction with VoxSmart is engaged in developing and marketing the telecommunications software and value added service identified in Schedule 2 (“the Service”).

1. The Customer wishes to access the Service described herein as provided by Zest4 (Vsmart) under a non-exclusive licence, in return for the payment of a monthly fee and subject to the terms and conditions of this Agreement.

IT IS AGREED as follows:

1. Definitions and Interpretation

1.1 In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

“Affiliates” / means any subsidiary or subsidiary undertaking of the Customer, the parent undertaking of the Customer, any subsidiary or subsidiary undertaking of such parent undertaking (and for the purposes of the Agreement “subsidiary”, “subsidiary undertaking” and “parent undertaking” shall be construed in accordance with Sections 1159 and 1162 of the Companies Act 2006);
“Applications” / means the selected software applications – Vsmart - which shall be available to the Customer, as set out in Schedule 2 of this Agreement, including any full or partial copies of the applications and any modifications, patches, fixes, corrections, enhancements, updates, upgrades or replacements subsequently provided by Zest4 and VoxSmart;
“Business Day” / means any day other than Saturday or Sunday that is not a bank or public holiday in the UK;
“Business Hours” / means any time between 9 am and 5:30 pm in the UK on a Business Day, during which Zest4 is open for business;
“Commencement Date” / means the earlier of:

1. the date of Customer Acceptance sign off;
2. the start date of commercial use of the Service by Users; or
3. 3 working days after access to the Service has been given to the Customer;

“Confidential Information” / means all information in any form or medium, whether disclosed orally or in writing before or after the date of this Agreement which is expressly marked as confidential or which is manifestly of a confidential nature including but not limited to all trade secrets, proprietary information and/or confidential information including, without prejudice to the generality of the foregoing, any ideas, business methods, finance, prices, business, financial, marketing, development or manpower plans, customer lists or details, computer systems or software, products or services and information concerning a party’s relationship with the Customer, other customers of Zest4 or potential customers;
“Customer Equipment” / means the Customer’s hardware, firmware, software and communications infrastructure through and on which the Services are to be accessed;
“Customer Data” / means any data belonging to the Customer or to third parties and used by the Customer under licence which is created using the Applications or otherwise stored in the VoxSmart Infrastructure;
“Customer UAT” / means Customer user acceptance testing further details of which are set out in Schedule 4;
“Early Termination Fee” / means the fee set out in Schedule 1 of this Agreement which shall be payable by the Customer in the event that it chooses to exercise the right to terminate this Agreement under sub-Clause 17.4;
“Fees” / means the sums payable by the Customer in return for access to the Applications, the VSmart Infrastructure and support services provided by Zest4 in accordance with Clauses 4 and 9 and Schedule 1 of this Agreement;
“Intellectual Property Rights” / means all vested contingent and future intellectual property rights including but not limited to copyright, trademarks, service marks, design rights (whether registered or unregistered), patents, know-how, trade secrets, inventions, get-up and database rights;
“Reasonable Usage Policy” / means the destinations and volume of call termination minutes supplied by VSmart and included in the Fees as detailed in Schedule 3
“Service” / means, collectively, the Applications, VSmart Infrastructure and support services provided by Zest4 to the Customer;
“Service Levels” / means the levels of performance to which the Services are to be provided to the Customer in accordance with Schedules 4 and 5;
“Term” / means the duration during which the Service is to be provided to the Customer in accordance with the provisions of this Agreement;
“Users” / means an employee of the Customer registered and licensed to use the Applications through the VSmart Infrastructure in accordance with the provisions of this Agreement; and
“VSmart Infrastructure” / means VSmart computer hardware, firmware, software and communications infrastructure which is used to provide the Service to the Customer.

1.2 Unless the context otherwise requires, each reference in this Agreement to:

1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;

1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;

1.2.3 “this Agreement” is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;

1.2.4 a Schedule is a schedule to this Agreement; and

1.2.5 a Clause, sub-Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.

1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.

1.4 Words imparting the singular number shall include the plural and vice versa.

1.5 References to any gender shall include the other gender.

2. The Service

2.1 Zest4 shall, with effect from the Commencement Date, provide the VSmart Service to the Customer on a non-exclusive basis for the Term and in accordance with the terms and conditions of this Agreement.

2.2 Zest4 grants to the Customer a personal, non-transferable, non-exclusive licence to use the Service through the VSmart Infrastructure during the Term in consideration of the payment of the Fees.

3. Term

3.1 This Agreement shall commence on the Commencement Date. Unless terminated early in accordance with Clause 17, or this Clause 3, this Agreement shall continue for a period of 2 years and shall automatically extend for 2 years at the end of the initial term and at the end of each extended term. The parties agree that either party may give written notice to the other, not later than 3 months before the end of the initial term or the relevant extended term, to terminate this Agreement at the end of the initial term or the relevant extended term, as the case may be.

4. Fees and Payment

4.1 The Fees due for the Service are specified in Schedule 1 to this Agreement and shall be paid by the Customer by Direct Debit within 15 days of receipt of an invoice from Zest4 for the same. Any fees and other charges payable under this Agreement are exclusive of any applicable VAT and any other local sales taxes which shall be payable by the Customer at the rate and in the manner prescribed by law against submission of a valid tax invoice.

4.2 In the event that the Customer does not pay all Fees due within the time period specified in sub-Clause 4.1 above, unless such payment is the subject of a dispute, Zest4 shall be entitled (without prejudice to any other right or remedy it may have) to suspend the Customer’s use of the Service by whatever means it deems appropriate having given the Customer 7 days’ notice in writing of its intention to do so. Notwithstanding any other provision of this Agreement, Zest4 shall have no liability to the Customer for any loss or damages it suffers as a consequence of such suspension.

4.3 In the event of persistent non-payment Zest4 shall have the right to revoke the Services and terminate this Agreement in accordance with Clause 17. Zest4 may re-possess and/or stop supporting any copies of the Applications and suspend Services for which payment has not been received by Zest4. Zest4 may also re-possess any documentation, data, records or information relating thereto.

4.4 Zest4 reserves the right to vary the Fees from time to time as it may deem appropriate. The Customer shall receive 30 days’ written notice of any such variation. Such variations shall take effect upon expiry of such notice, subject to the Customer’s right to terminate this Agreement in accordance with sub-Clause 17.4.

5. The Applications

5.1 The Applications to which the Customer shall have access are detailed in Schedule 2 to this Agreement.

5.2 The Customer is free during the term of this Agreement to add to the selection of Applications. The Fees shall be amended accordingly from the date of such modification for the remainder of the Term.

6. Software Licences

6.1 The Customer shall use all Applications under a non-exclusive, non-transferrable licence, as set out in this Agreement. This licence permits a maximum number of Users, as communicated in writing by the Customer and accepted by Zest4, to access the Applications at any given time.

6.2 Applications provided by Zest4 are the property of Zest4 and VSmart unless otherwise stated and shall be covered by the terms of the licence included in this Agreement.

6.3 Where Applications are the property of a third party, Zest4 warrants that they have all requisite authority to sub-licence such applications to the Customer for the purposes of this Agreement and for use under its terms.

7. Applications and VSmart Infrastructure Terms of Use

7.1 Under this Agreement, as indicated in sub-Clause 6.1 above, a number of Users, as stated on the Customer’s order for the Service, may access the Applications through the VSmart Infrastructure at any given time.

7.2 Once an order from the Customer has been accepted by Zest4, all Fees payable for the Service are non-refundable. For the avoidance of doubt the Customer can only reduce the number of Users on renewal of the Term in accordance with Clause 3.

7.3 Should the Customer require an increase in the number of Users, such an increase shall be permitted at the exclusive discretion of Zest4 with the additional Users’ term running conterminously with the Term. Zest4 reserves the right to increase Fees proportionately, in accordance with Schedule 1, in the event of an increase in the number of Users.

7.4 Use of the Service by persons who are not employees of the Customer or Affiliates is not permitted under this Agreement in the absence of express written consent from Zest4, such consent not to be unreasonably withheld or delayed.

7.5 The Customer shall use the Service exclusively for the purposes of carrying on its business. The Customer may not nor permit others to use the Service for any unlawful purpose whatsoever. The Customer specifically agrees to indemnify Zest4 against all reasonable costs and liabilities arising out of all claims which result from any breach by the Customer of this clause.

7.6 The Customer acknowledges that it is its sole responsibility to determine that the Service meet the needs of its business.

7.7 Zest4 shall monitor the Customer’s use of the Applications and VSmart Infrastructure from time to time to ensure compliance with the terms and conditions of this Agreement and with the Reasonable Usage Policy annexed to this Agreement as Schedule 3. In the event that the Customer’s use of the Service exceeds levels deemed reasonable by the Reasonable Usage Policy, VoxSmart will charge additional Fees, in accordance with Schedule 3, as it deems appropriate.

7.8 The Customer agrees that Zest4 shall have the right to examine the use to which the Customer puts the Service and the nature of the data/information that the Customer is transmitting or receiving via the Service where such examination is necessary: (i) to protect/ safeguard the integrity, operation and functionality of the Service; or (ii) to comply with police, judicial, regulatory or governmental orders, notices, directives or requests.

7.9 If the Customer is in breach of any of its obligations in this clause 7, then, without prejudice to the other terms and conditions in this Agreement Zest4 shall not be liable for any failure to meet the Service Levels which arises as a direct or indirect result of such Customer breach.

7.10 The Customer may only access the Applications detailed in Schedule 2 to this Agreement. No access to other parts of the VSmart Infrastructure shall be permitted in the absence of express written permission from Zest4.

7.11 The Customer is exclusively responsible for its use of the Service, including the conduct of individual Users and must ensure that all use is in accordance with this Agreement. The Customer shall notify Zest4 immediately of any breaches of this Agreement by any Users.

7.12 Under no circumstances may the Customer download, store, reproduce, reverse engineer or redistribute the Applications or any other part of the VSmart Infrastructure, without first obtaining the express written permission of Zest4

7.13 The Customer’s use of the Applications and VSmart Infrastructure may, from time to time, be governed by statutory or regulatory rules and requirements external to the terms and conditions of this Agreement. It shall be the Customer’s exclusive responsibility to ensure that their use of the Service is in compliance with any such laws.

7.14 Neither the Customer, nor anyone on their behalf may, in the absence of written consent from Zest4 make changes of any kind to the Applications or the VSmart Infrastructure.

8. Customer Equipment

8.1 The Customer has sole responsibility for ensuring the Customer Equipment is ready for use and fit for purpose for the Service at all times.

8.2 Prior to commencement of the Service the Customer shall conduct a full inspection and inventory of the Customer Equipment and be responsible for compatibility with the Applications and VSmart Infrastructure in accordance the Zest4 minimum specifications in force at the time. If the Customer proposes to make changes to the Customer Equipment in future the Customer is responsible for checking with Zest4 that any such proposed new equipment is compatible with the Service.

8.3 Zest4 may from time to time require physical access to the Customer Equipment for the sole purpose of providing the Service. Such access shall be granted by the Customer free of charge upon receipt of reasonable notice from Zest4.

8.4 The Customer shall be responsible for ensuring that all security access codes issued to the Customer will be held in a secure environment to prevent unauthorised access to these codes. Any unauthorised access to the Service will be the responsibility of the Customer and the Customer will indemnify Zest4 and hold it harmless against any resultant liabilities to or costs incurred by Zest4. The Customer shall also be responsible for adhering to any security procedures which Zest4 may notify to the Customer from time to time.

8.5 In the event of any unauthorised access by the Customer to Applications or the VSmart Infrastructure, in breach of sub-Clause 8.4 or otherwise Zest4 shall be entitled to terminate access indefinitely or temporarily as it deems appropriate and to terminate this Agreement in accordance with Clause 17 below.

8.6 The Customer shall hold, at all relevant times for the duration of this Agreement, all appropriate licences to operate telecommunications systems and equipment which are used with the Service and will not use the Service in a way which is likely to lead to any breach of the provisions of any licence held by any party.

8.7 If the Customer is in breach of any of its obligations in this clause 8, then, without prejudice to the other terms and conditions in this Agreement Zest4 shall not be liable for any failure to meet the Service Levels which arises as a direct or indirect result of such Customer breach.

9. Support

9.1 Zest4 shall, throughout the Term of this Agreement, provide support to the Customer in accordance with the terms and conditions of this Agreement and the provisions of Schedule 4.

9.2 Zest4 shall provide the service levels as specified in Schedules 4 and 5 unless otherwise agreed in writing by the Parties.

10. Intellectual Property

10.1 All Intellectual Property Rights subsisting in the Applications, including any supporting software and documentation are the property of, or properly licenced to, Zest4.

10.2 The Customer shall not, in the absence of Zest4 written consent, reproduce, adapt, translate, reverse-engineer, or make available to any third party any of the Applications, any part of the VSmart Infrastructure, or any other material associated with this Agreement where such activity goes beyond the scope of actions permitted by the terms and conditions of this Agreement.

10.3 Where the Customer either suspects or is aware of any breach of Intellectual Property Rights covered by this Clause 10 it shall be under a duty to inform Zest4 of such breach immediately.

11. Customer Data

11.1 Subject to sub-Clause 11.2 all Intellectual Property Rights subsisting in Customer Data are and shall remain the property of the Customer.

11.2 Certain Customer Data may belong to third parties. In such cases, the Customer warrants that all such Customer Data is used with the consent of such relevant third parties.

11.3 The Customer acknowledges and agrees that it is entirely responsible for its Customer Data and its input to the Service and for any use that it or any third party may make of such Customer Data and input for any purposes and that Zest4 has no responsibility for such input or use. Without prejudice to the generality of the foregoing, the Customer undertakes to inform itself (and, if appropriate, Zest4) concerning, and in performing its obligations under this Agreement to comply fully with all laws, regulations, licences or binding codes or standards of practice relevant to personal data (including without limitation the Data Protection Act 1998).

11.4 The Customer acknowledges that unless otherwise notified, all Customer Data held by VSmart will be automatically deleted upon expiry of the storage period referred to in Schedule 1 the customer order form and it is the Customer’s sole responsibility to notify Zest4 and pay the Fees for additional storage if access to recordings is required beyond this period.

11.5 Where Zest4 at the request of the Customer provides Customer Data to the Customer on a hardware storage device for archiving on the Customer’s own site:

11.5.1 Zest4will take all reasonable measures to provide adequate security for such data; and