Terms and Conditions - MKS Software

TERMS AND CONDITIONS - MKS SOFTWARE

CONDITIONS

1. INTERPRETATION

1.1. Definitions:

Authorised Users those employees, agents and independent contractors of the Consignee who are authorised by the Consignee to use MKS and the Documentation.

Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Buyer a third party who is responsible for payment of the Fees, as specified in the Contract Details.

Change of Control the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.

Confidential Information information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.1.

Consignee Data the data inputted by the Consignee, Authorised Users, or Monarch on the Consignee's behalf for the purpose of using MKS or facilitating the Consignee's use of MKS.

Documentation means any Monarch operating manuals, user instructions, technical literature and all other related materials in eye-readable form supplied to Consignee (or Authorised User) whether in electronic or paper form.

Fees the fees set out in the Contract Details.

Initial Term the initial term of the Contract as set out in the Contract Details.

Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in getup and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Machine Monarch and/or Fukuhara knitting machines.

Maintenance Release release of MKS that corrects faults, adds functionality or otherwise amends or upgrades MKS, but which does not constitute a New Version.

Modules the modules purchased by the Consignee, as specified in the Contract Details, which entitle Authorised Users to access and use

MKS (and those respective modules) and the Documentation in accordance with the Contract. MKS the computer programs and/or software as a service solution, as further described in Schedule 1, which provide the Consignee and Authorised Users with access to the Modules and any Maintenance Release which is acquired by the Consignee during the subsistence of this agreement.

New Version any new version of MKS are which from time to time is publicly marketed and offered for purchase by Monarch in the course of its normal 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.

Normal Business Hours 8.30 am to 5.00 pm local UK time, each Business Day.

Renewal Period the period described in clause 14.1.

Term has the meaning given in clause 14.1 (being the Initial Term together with any subsequent Renewal Periods).

Virus any thing 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 programme or data (whether by re-arranging, altering or erasing the programme 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.

Vulnerability a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.

1.2. Clause, schedule and paragraph headings shall not affect the interpretation of the Contract.

1.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.

1.7. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.

1.8. A reference to writing or written includes email.

1.9. References to clauses and schedules are to the clauses and schedules of the Contract; references to paragraphs are to paragraphs of the relevant schedule to the Contract.

2. INSTALLATION AND MAINTEANCE RELEASES

2.1. Monarch shall deliver the security key (in the case of hard-ware based Modules), the licence code (in the case of cloud versions of the Modules) as well as installation instructions to the Delivery Location on the Delivery Date set out in the Contract Details. Any dates for delivery shall be estimates only and time shall not be of the essence.

2.2. The Consignee shall be responsible for installation of the Modules in accordance with the written installation instructions supplied by Monarch.

2.3. Monarch will provide the Consignee with all Maintenance Releases generally made available to its customers. Monarch warrants that no Maintenance Release will adversely affect the then existing facilities or functions of MKS. The Consignee acknowledges that files created in an upgraded version of MKS may not be compatible with older versions of MKS. The Consignee shall install all Maintenance Releases as soon as reasonably practicable after receipt.

3. MODULES

3.1. Subject to the Consignee purchasing the Modules in accordance with clause 4.3 and clause 9.1, the restrictions set out in this clause 3 and the other conditions of the Contract, Monarch hereby grants to the Consignee a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use MKS and the Documentation on the Machine(s) during the Term solely for the Consignee's internal business operations.

3.2. The Consignee undertakes that each Authorised User shall keep the licence credentials for their use of MKS and Documentation and that each Authorised User shall keep their licence credentials confidential.

3.3. The Consignee shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of MKS that:

3.3.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

3.3.2. facilitates illegal activity;

3.3.3. depicts sexually explicit images;

3.3.4. promotes unlawful violence;

3.3.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

3.3.6. is otherwise illegal or causes damage or injury to any person or property; and Monarch reserves the right, without liability or prejudice to its other rights to the Consignee, to disable the Consignee's access to any material that breaches the provisions of this clause.

3.4. The Consignee shall not:

3.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:

3.4.1.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of MKS and/or Documentation (as applicable) in any form or media or by any means; or

3.4.1.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to humanperceivable form all or any part of MKS; or

3.4.2. access all or any part of MKS and Documentation in order to build a product or service which competes with MKS and/or the Documentation; or

3.4.3. use MKS and/or Documentation to provide services to third parties otherwise than in the ordinary course of its business; or

3.4.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make MKS and/or Documentation available to any third party except the Authorised Users, or

3.4.5. attempt to obtain, or assist third parties in obtaining, access to MKS and/or Documentation, other than as provided under this clause 3; or

3.4.6. introduce or permit the introduction of, any Virus or Vulnerability into MKS or Monarch's network and information systems.

3.5. The Consignee shall use all reasonable endeavours to prevent any unauthorised access to, or use of, MKS and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Monarch.

3.6. The rights provided under this clause 3 are granted to the Consignee only, and shall not be considered granted to any subsidiary or holding company of the Consignee.

4. ADDITIONAL MODULES

4.1. Subject to clause 4.2 and clause 4.3, the Consignee may, from time to time during the Term, purchase other Modules than those set out in the Contract Details.

4.2. If the Consignee wishes to purchase other Modules, the Consignee shall notify Monarch in writing. Monarch shall evaluate such request and respond to the Consignee with approval or rejection of the request. Where Monarch approves the request, Monarch shall activate the new Modules as soon as reasonably possible.

4.3. If Monarch approves the Consignee's request to purchase additional Modules, the Consignee shall, within 30 days of the date of Monarch's invoice, pay to Monarch the relevant fees for such additional Modules and, if such additional Modules are purchased by the Consignee part way through the Initial Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Monarch for the remainder of the Initial Term or then current Renewal Period (as applicable).

5. MKS

5.1. Monarch shall, during the Term, provide MKS and make available the Documentation to the Consignee on and subject to the terms of the Contract.

5.2. Monarch shall use commercially reasonable endeavours to make MKS available 24 hours a day, seven days a week, except for:

5.2.1. planned maintenance;

5.2.2. unscheduled maintenance performed outside Normal Business Hours; and

5.2.3. any downtime or service interruption caused by failures of issues attributable to Monarch's hosting provider.

5.3. Monarch will, as part of the services and at no additional cost to the Consignee provide the Consignee with:

5.3.1. Training on how to use MKS for 3 days and for up to 3 representatives of the Consignee to take place at Monarch's offices in Leicester. Any additional training required by the Consignee will be charged at an additional cost. The Consignee shall be responsible for all hotel, travel and living expenses incurred by the Consignee in attending training provided by Monarch;

5.3.2. Monarch's standard customer support services during Normal Business Hours.

5.4. Without prejudice to clause 2.3, Monarch may at any time modify MKS or release new versions of MKS provided that the same (as amended) functions in substantially the same way as it did before modification.

6. THIRD PARTY PROVIDERS The Consignee acknowledges that MKS may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Monarch makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third party website, or any transactions completed, and any contract entered into by the Consignee, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Consignee and the relevant third party, and not Monarch. Monarch recommends that the Consignee refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. Monarch does not endorse or approve any third-party website nor the content of any of the third-party website made available via MKS.

7. MONARCH'S OBLIGATIONS

7.1. Monarch shall perform its obligations under the Contract with reasonable skill and care and shall make MKS available substantially in accordance with the Documentation.

7.2. Monarch's obligations at clause 7.1 shall not apply to the extent of any nonconformance which is caused by use of MKS contrary to Monarch's instructions, or modification or alteration of MKS by any party other than Monarch or Monarch's duly authorised contractors or agents. If MKS do not conform with the terms of clause 7.1, Monarch will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Consignee's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.

7.3. Monarch:

7.3.1. does not warrant that:

7.3.1.1. the Consignee's use of MKS will be uninterrupted or error-free;

7.3.1.2. that MKS, Documentation and/or the information obtained by the Consignee through MKS will meet the Consignee's requirements; and

7.3.1.3. MKS will be free from Vulnerabilities or Viruses;

7.3.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Consignee acknowledges that MKS and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.4. The Contract shall not prevent Monarch from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Contract.

7.5. Monarch warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Contract.

8. CONSIGNEE'S OBLIGATIONS

8.1. The Consignee shall:

8.1.1. provide Monarch with:

8.1.1.1. all necessary co-operation in relation to the Contract; and

8.1.1.2. all necessary access to such information as may be required by Monarch; in order to provide MKS, including but not limited to Consignee Data, security access information and configuration services;

8.1.2. without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;

8.1.3. carry out all other Consignee responsibilities set out in the Contract in a timely and efficient manner. In the event of any delays in the Consignee's provision of such assistance as agreed by the parties, Monarch may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.4. ensure that the Authorised Users use MKS and the Documentation in accordance with the terms and conditions of the Contract and shall be responsible for any Authorised User's breach of the Contract;

8.1.5. obtain and shall maintain all necessary licences, consents, and permissions necessary for Monarch, its contractors and agents to perform their obligations under the Contract;

8.1.6. ensure that its network and systems comply with the relevant specifications provided by Monarch from time to time; and

8.1.7. be, to the extent permitted by law and except as otherwise expressly provided in the Contract, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Monarch's (or its contractors and agent's) data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Consignee's network connections or telecommunications links or caused by the internet.

8.2. The Consignee shall own all right, title and interest in and to all of the Consignee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Consignee Data.

9. CHARGES AND PAYMENT

9.1. Subject to clause 9.7, where the Contract Details specify a Buyer different from the Consignee, the payment obligations set out in clause 9.2 shall not apply and it is acknowledged that the Fees shall be paid by the Buyer.

9.2. Subject to clause 9.1, the Consignee shall pay the Fees to Monarch for the Modules in accordance with this clause 9.

9.3. The Consignee shall on the Effective Date provide to Monarch approved purchase order information acceptable to Monarch and any other relevant valid, up-to-date and complete contact and billing details and Monarch shall invoice the Consignee or the Buyer (as applicable):

9.3.1.1. on the Effective Date for the Fees payable in respect of the Initial Term; and

9.3.1.2. subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Fees payable in respect of the next Renewal Period, and the Consignee or the Buyer (as applicable) shall pay each invoice within 30 days after the date of such invoice.

9.4. If Monarch has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Monarch:

9.4.1. Monarch may, on no less than 5 Business Days' notice to the Consignee and without liability to the Consignee, disable the Consignee's password, account and access to all or part of MKS and Monarch shall be under no obligation to provide any or all of MKS while the invoice(s) concerned remain unpaid; and

9.4.2. 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 Monarch's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.5. All amounts and fees stated or referred to in the Contract:

9.5.1. shall be payable in the currency stated in the Contract Details;

9.5.2. are, subject to clause 13.3.2, non-cancellable and non-refundable;

9.5.3. are exclusive of value added tax, which shall be added to Monarch's invoice(s) at the appropriate rate.

9.6. Monarch shall be entitled to increase the Fees at the start of each Renewal Period upon 60 days' prior notice to the Consignee and the details in the Contract Details shall be deemed to have been amended accordingly. The increase shall be in line with the percentage increase in the Retail Price Index (RPI) published by the Office for National Statistics (or any successor body) over the twelve-month period immediately preceding the date of the increase.

9.7. Without prejudice to any other rights or remedies available to Monarch, where a Buyer is specified in the Contract Details, if any sums due to Monarch have not been paid when due (as determined by Monarch), for any reason whatsoever, the Consignee shall become immediately liable for all sums due under the Contract including the Fees.

10. PROPRIETARY RIGHTS

10.1. The Consignee acknowledges and agrees that Monarch and/or its licensors own all Intellectual Property Rights in MKS and the Documentation. Except as expressly stated herein, the Contract does not grant the Consignee any rights to, under or in, any Intellectual Property Rights in respect of MKS or the Documentation.

10.2. Monarch confirms that it has all the rights in relation to MKS and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract.

11. CONFIDENTIALITY

11.1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of the Contract, including but not limited to:

11.1.1. any information that would be regarded as confidential by a reasonable business person relating to:

11.1.1.1. the business, assets, affairs, customers, clients, suppliers, plans , intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and

11.1.1.2. the operations, processes, product information, knowhow, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);

11.1.2. any information developed by the parties in the course of carrying out the Contract and the parties agree that:

11.1.2.1. details of MKS and the results of any performance tests of MKS, shall constitute Monarch Confidential Information; and

11.1.2.2. Consignee Data shall constitute Consignee Confidential Information.

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

11.2. Each party may disclose the other party's Confidential Information:

11.2.1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 11.2; and

11.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3. Neither party shall use any other party's Confidential Information for any purpose other than to perform its obligations under the Contract. Except as expressly stated in the Contract, no party makes any express or implied warranty or representation concerning its Confidential Information.

11.4. The above provisions of this clause 11 shall continue to apply after termination or expiry of the Contract.

12. INDEMNITY

12.1. The Consignee shall defend, indemnify and hold harmless Monarch 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 Consignee's use of MKS and/or Documentation, provided that:

12.1.1. the Consignee is given prompt notice of any such claim;

12.1.2. Monarch provides reasonable co-operation to the Consignee in the defence and settlement of such claim, at the Consignee's expense; and

12.1.3. the Consignee is given sole authority to defend or settle the claim.

12.2. Monarch shall defend the Consignee, its officers, directors and employees against any claim that the Consignee's use of MKS or Documentation in accordance with the Contract infringes any third-party Intellectual Property Rights and shall indemnify the Consignee for any amounts awarded against the Consignee in judgment or settlement of such claims, provided that:

12.2.1. Monarch is given prompt notice of any such claim;

12.2.2. the Consignee does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Monarch in the defence and settlement of such claim, at Monarch's expense; and

12.2.3. Monarch is given sole authority to defend or settle the claim.

12.3. In the defence or settlement of any claim, Monarch may procure the right for the Consignee to continue using MKS, replace or modify MKS so that they become noninfringing or, if such remedies are not reasonably available, terminate the Contract on 2 Business Days' notice to the Consignee without any additional liability or obligation to pay liquidated damages or other additional costs to the Consignee.

12.4. In no event shall Monarch, its employees, agents and sub-contractors be liable to the Consignee to the extent that the alleged infringement is based on:

12.4.1. a modification of MKS or Documentation by anyone other than Monarch; or

12.4.2. the Consignee's use of MKS or Documentation in a manner contrary to the instructions given to the Consignee by Monarch; or

12.4.3. the Consignee's use of MKS or Documentation after notice of the alleged or actual infringement from Monarch or any appropriate authority; or

12.4.4. the Consignee's breach of the Contract.

12.5. The foregoing and clause 13.3.2 state the Consignee's sole and exclusive rights and remedies, and Monarch's (including Monarch's employees', agents' and subcontractors') entire obligations and liability, for infringement of any Intellectual Property Rights.

13. LIMITATION OF LIABILITY

13.1. Except as expressly and specifically provided in the Contract:

13.1.1. the Consignee assumes sole responsibility for results obtained from the use of MKS and the Documentation by the Consignee, and for conclusions drawn from such use. Monarch shall have no liability for any damage caused by errors or omissions in any Consignee Data, information, instructions or scripts provided to Monarch by the Consignee in connection with MKS, or any actions taken by Monarch at the Consignee's direction;

13.1.2. 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 the Contract; and

13.1.3. MKS and the Documentation are provided to the Consignee on an "as is" basis.

13.2. Nothing in the Contract excludes the liability of Monarch:

13.2.1. for death or personal injury caused by Monarch's negligence; or 13.2.2. for fraud or fraudulent misrepresentation.

13.3. Subject to clause 13.1 and clause 13.2:

13.3.1. Monarch shall have no liability for any:

13.3.1.1. loss of profits,

13.3.1.2. loss of business,

13.3.1.3. wasted expenditure,

13.3.1.4. depletion of goodwill and/or similar losses,

13.3.1.5. loss or corruption of data or information, or

13.3.1.6. any special, indirect or consequential loss, costs, damages, charges or expenses; and

13.3.2. Monarch's total aggregate liability to the Consignee (including in respect of the indemnity at clause 12.2), in respect of all breaches of duty occurring within any contract year shall not exceed the cap.

13.3.3. In clause 13.3.2:

13.3.3.1. The cap is 100% of the total Fees paid in the contract year in which the breaches occurred;

13.3.3.2. A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.

13.4. References to liability in this clause 13 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

13.5. Nothing in the Contract excludes the liability of the Consignee for any breach, infringement or misappropriation of Monarch's Intellectual Property Rights.

14. TERM AND TERMINATION

14.1. The Contract shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Term and, thereafter, the Contract shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:

14.1.1. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Term or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or

14.1.2. otherwise terminated in accordance with the provisions of the Contract; and the Initial Term together with any subsequent Renewal Periods shall constitute the Term.

14.2. Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:

14.2.1. the other party or the Buyer (if applicable) fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

14.2.2. the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;

14.2.3. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

14.2.4. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

14.2.5. the other party's financial position deteriorates to such an extent that in the terminating party's reasonable opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

14.3. Without affecting any other right or remedy available to it, Monarch may terminate the Contract:

14.3.1. by giving the Consignee 60 day's written notice to terminate the Contract; or

14.3.2. with immediate effect by giving written notice to the Consignee if there is a change of control of the Consignee.

14.4. On termination of the Contract for any reason:

14.4.1. subject to clause 14.5, all licences granted under the Contract shall immediately terminate and the Consignee shall immediately cease all use of MKS and/or the Documentation;

14.4.2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

14.4.3. Monarch may destroy or otherwise dispose of any of the Consignee Data in its possession unless Monarch receives, no later than ten days after the effective date of the termination of the Contract, a written request for the delivery to the Consignee of the then most recent backup of the Consignee Data. Monarch shall use reasonable commercial endeavours to deliver the back-up to the Consignee within 30 days of its receipt of such a written request, provided that the Consignee 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 Consignee shall pay all reasonable expenses incurred by Monarch in returning or disposing of Consignee Data; and

14.4.4. 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

14.5. Notwithstanding termination of the Contract for any reason, the Consignee shall have the continuing right and Monarch hereby grants the Consignee a non-exclusive, non-transferable right and licence to use any hard-ware based Modules and any security keys provided by Monarch during the term of the Contract. For the avoidance of doubt, Monarch's obligations under clause 2.3 shall terminate on termination of the Contract. On termination of this Contract, the following clauses alone shall continue in force: clause 1 (Interpretation), clause 11 (Confidentiality), clause 13 (Limitation of Liability), clause 14 (Termination) and clause 16 (General).

15. FORCE MAJEURE

15.1. For the purposes of this clause 15 a Force Majeure Event means any circumstance not within a party's reasonable control including:

15.1.1. acts of God, flood, drought, earthquake or other natural disaster;

15.1.2. epidemic or pandemic;

15.1.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

15.1.4. nuclear, chemical or biological contamination or sonic boom;

15.1.5. any law or action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

15.1.6. collapse of buildings, fire, explosion or accident;

15.1.7. any labour or trade dispute, strikes, industrial action or lockouts;

15.1.8. non-performance by suppliers or subcontractors including any failing to grant a necessary licence or consent; and

15.1.9. interruption or failure of utility (including telecommunications) service.

15.2. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.

16. GENERAL

16.1. Consideration.

16.1.1. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the terms set out in these Conditions.

16.2. Assignment and other dealings.

16.2.1. The Consignee shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without Monarch's prior written consent.

16.2.2. Monarch may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

16.3. Entire agreement.

16.3.1. The Contract 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.

16.3.2. Each party acknowledges that in entering into the Contract it does not rely on 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

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

16.5. Waiver.

16.5.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

16.5.2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

16.6. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.5 shall not affect the validity and enforceability of the rest of the Contract.

16.7. Notices.

16.7.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

16.7.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

16.7.1.2. sent by email (if available) to the address specified in the Contract Details.

16.7.2. Any notice or communication shall be deemed to have been received:

16.7.2.1. if delivered by hand, at the time the notice is left at the proper address;

16.7.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

16.7.2.3. if sent by email (if available), at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause

16.7.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

16.7.3. This clause 16.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.8. Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

16.9. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

16.10. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

SCHEDULE 1

MKS DESCRIPTION All products are supplied with a base module called "MKS Design". This module allows users to create and process designs suitable for programming our electronic circular knitting machines. The licence can either be via a hardware key or by cloud. The second module is called "MKS Simulation" and takes the design created in MKS Design and with additional information creates a simulated fabric or "efabric". This is a cloud based module only. The third module is called "MKS Drape" and takes the simulated fabric and drapes onto a 3D model that represents the end use. The creation of the 3D model is the responsibility of the Consignee. This is a cloud based module only. Monarch reserves the right to add modules at a later date. Summary of available products: