Software and Service Licensing Agreement

THIS DOCUMENT FORMS A CONTRACT (THE "AGREEMENT") BETWEEN YOU (HEREINAFTER REFERRED TO EITHER AS "PARTNER" OR THE "USER" OR THE "CUSTOMER") AND MENISCUS SYSTEMS LTD ("COMPANY"). BY USING THE PRODUCT OR SERVICE, AS DEFINED BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS CONTRACT AND YOU AGREE TO BE BOUND BY IT.

1. Preamble

   The parties hereto wish to enter into this Agreement for the purpose of allowing the Partner to use the web based data management services developed by the Company. This Agreement covers the provision of services hosted on the Company's servers.

2. Definitions

   In this Agreement the following words will have the following meanings:-

   "Calculated Data" means the data which is processed from the Raw Data after the Raw Data has been input on the Database.

   "Client" means a client of the Partner to whom the Partner provides various services using IPMS and data management services provided by the Company.

   "Contract" means the contract between the Company and the Partner for the provision of the Services which is made subject to these terms and conditions.

   "Database" means SQL Server database that stores Raw Data and Calculated Data and other related data and is hosted on servers located in the offices of the Company.

   "Domain Name" means the domain name meniscus.co.uk or bopsolutions.com.

   "Intellectual Property Rights" means any and all patents, trade marks, rights in domain names, rights in designs, copyright and database rights (whether registered or not and any applications to register or rights to apply for registration) rights in confidential information and all other intellectual property rights of a similar nature which may subsist now or in the future in any part of the world.

   "Internet" means the global network of computer systems including the world wide web.

   "IPMS" means the Company's suite of Internet pages accessed under the Domain Name including all text, graphics, logos, photographs, images and other material featured, displayed or used on the IPMS which has been developed by the Company and all computer programs, databases, specifications, data, coding, source or object codes or other material relating to or comprising part of IPMS and required to enable IPMS to operate efficiently on the System.

   "Liabilities" means all claims, proceedings, actions, liabilities, losses, damages, fines, costs and expenses.

   "Normal Working Hours" means between 09.00 and 17:00 hrs Monday to Friday excluding any Public Holidays".

   "Password" means the password or passwords given to the Partner or Client in order to access the IPMS.

   "Raw Data" means the raw meter readings supplied by a Client which are input on the Database.

   "Reports" means any report, graph or web page that displays data using either the Raw Data or the Calculated Data.

   "Services" means the various services to be provided by the Company set out in clause 3.2.

   "System" means the equipment and telecommunications equipment belonging to the Company and which provides a link to the world wide web via the Internet.

3. Services

   1. During the term of the Contract the Company will provide the Services for the benefit of the Partner.

   2. The Services will comprise:

      1. the provision of data management services set out in clause 4.1;
      2. the hosting services set out in clause 5;
      3. the provision of technical support in accordance with clause 15;
      4. the provision of sales and marketing support in accordance with clause 16.

4. Data Management Services

   1. The Company will provide data management services to the Partner using the IPMS website and/or the Windows PC application and the Partner will be entitled to make such services available to its Clients.

   2. The Services will comprise:

   3. For this purpose the Company grants to the Partner a non-exclusive licence to access IPMS using the Domain Name and the Password during the term of this Contract subject to the following restrictions.

   4. The Partner shall not deploy any applications or software that use any IPMS software code or object code without first submitting the application to the Company for approval such approval not to be unreasonably withheld.

   5. The Partner shall be entitled to:-

      1. input or authorise its Clients to input Raw Data on the Database.
      2. use the Services to manage, collate, analyse and report on Raw Data and Calculated Data.

   6. The Company will ensure that IPMS configured so as to process the Raw Data which is input by the Partner or the Client in the form of Reports which are customised to suit the particular requirements of the Partner. The Partner will not be entitled to customise Reports itself.

5. Hosting Services

   1. The Company will host IPMS on its server and make it available for access by the Partner and its Clients during the term of the Contract.

   2. The Company undertakes that wherever possible any maintenance of the hardware and software infrastructure on which IPMS is located which takes longer than 1 hour shall be undertaken outside Normal Working Hours, However the Company reserves the right to carry out emergency maintenance work at any time giving to the Partner as much warning as reasonably possible.

   3. The Company undertakes to establish and maintain reasonable safeguards against the destruction, loss or authorised alteration of the Raw Data and shall institute reasonable security procedures to restrict the destruction, corruption or unauthorised access to IPMS and Database.

   4. The Company takes no responsibility for and content, advice or comment generated as a consequence of the Services.

   5. The Company will use its reasonable endeavours to ensure that the System on which IPMS is based and IPMS themselves shall remain continuously available to the Partner or its Clients via the Internet. In the event of IPMS becoming unavailable over the Internet due to a failure of the System the Company will credit the Partner with 0.5% per cent of any charges payable during the month for each hour during which the IPMS is unavailable.

   6. The Company reserves the right to suspend the Services in the event that the Partner undertakes a material breach of this Agreement or where the amounts outstanding as set out in clause 9 have not been paid within 30 days.

6. Raw and Calculated Data

   1. The Partner or its Client will be responsible for inputting Raw Data on the Database.

   2. The Calculated Data will be made available to the Partner from the Website in the form of the Reports. The Partner will be responsible for the interpretation of the Calculated Data, the presentation of it to the Client and any advice based on it which it may give to the Client.

7. Intellectual Property Rights

   1. All Intellectual Property Rights in IPMS, the Domain Name and the Calculated Data shall belong to the Company and neither the Partner nor any Client will acquire any rights or title thereto other than the rights specifically granted to them under this Contract.

   2. The Company will not acquire any rights or title to the Intellectual Property Rights in the Raw Data except that the Company will have an irrevocable right to receive, hold and use the Raw Data on the System so as to derive the Calculated Data.

   3. The Company hereby grants to the Partner a non exclusive, irrevocable, royalty free licence to use and disclose the Calculated Data in such manner as it may decide both during the term of this Contract and thereafter.

8. Modifications and Improvements

   1. The Company will notify the Partner of any modifications or improvements which it may make to IPMS or the Services generally during the term of this Contract. Notification to be made via fax or by e-mail to the nominated representative of the Partner.

   2. If requested by the Partner, the Company will make such modifications or improvements available to the Partner under the terms of this Contract but subject to the payment by the Partner of such additional charges as may be agreed between the Company and the Partner at the time.

9. Charges

   1. In consideration of the Services provided by the Company the Partner will pay the charges set out in Schedule 2.0.

   2. The Company will be entitled to issue invoices for the charges on a monthly basis and the Partner will pay the total sum due within 14 days of the date of the invoice.

   3. If any sum payable by the Partner to the Company is not paid on the due date then (without prejudice to the Company's other rights and remedies) it will be entitled to claim interest and compensation under the Late Payment of Interest Act 1998.

10. Warranties

    1. The Company warrants to the Partner that it will perform the Services with due care and skill.

    2. Subject to clause 9.1 and any other express warranties or undertakings given by the Company in this Contract the Company gives no warranties whatsoever in relation to the performance of the Services or this Contract and all representations, warranties, terms and conditions whether oral or written, express or implied by law, custom, statute or otherwise are excluded.

    3. The Partner warrants that it has the right to enter Client's data and the right to analyse and report on that data.

11. Limitation of Liability

    1. The Company will have no liability to the Partner whatsoever in respect of any Liabilities incurred or suffered by the Partner or a Client arising from:-

       1. any adaptation of IPMS by the Partner[including use of trade marks etc}.

       2. any inaccurate or incorrectly formatted Raw Data which is input on the Database by the Partner or a Client;

       3. the unavailability of the Website over the Internet for any reason (subject to the rights of the Partner to claim a credit against the charges under clause 5.5.

       4. the interpretation and analysis of the Calculated Data by the Partner and reports or advice given thereon to a Client;

       5. the loss by the Partner or a Client of the Password

       6. any unauthorised access to the Website or the Database by any person;

       7. any viruses introduced into the Database as a result of the inputting of the Raw Data.

    2. Subject to clause 11.4 the Company's entire liability to the Partner in respect of any breach of the Company's contractual obligations, any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Contract shall be limited to £10,000

    3. The Company shall not be liable to the Partner for any indirect or consequential loss the Partner may suffer even if the loss is reasonably foreseeable or the Company has been advised of the possibility of the Partner incurring it

    4. Notwithstanding any other provision in this Contract the Company's liability to the Partner for death or injury resulting from its negligence or that of its employees shall not be limited.

12. Indemnity

    1. The Partner will indemnify the Company and keep it indemnified from all Liabilities incurred or suffered by the Company in respect of any claims made against the Company by a Client arising from any of the circumstances set out in clause 11.1.

13. Confidentiality

    1. During the term of this Contract and thereafter the Company undertakes:-

       1. not to use the Raw Data for any purpose other than the performance of its obligations under this Contract;

       2. not to use the Calculated Data for any purpose other than the performance of its obligations under this Contract except in the use of benchmarking against other similar sites and processes. In the event that Calculated Data is used for benchmarking then the Company will ensure that any reference to the name of the Partner or Client or reference to any location of the Partner of Client is removed from the data to ensure confidentiality.

       3. not to disclose the Raw or Calculated Data to any person other than to its employees who need to have access to it in relation to the performance of the Company's obligations under this Contract;

    2. The obligations of confidence referred to in clause 13.1 will not apply in respect of any Raw Data which:-

       1. is or becomes publicly available on a non-confidential basis through no fault of the Company;

       2. is required to be disclosed by any applicable law or regulation;

       3. is received in good faith by the Company from a third party who claims to have no obligations of confidence in respect of the Raw Data or the Calculated Data and who imposes no obligations of confidentiality on the Company.

14. Termination

    1. This Contract shall commence on the Effective Date and shall continue for a period of one year and thereafter until terminated by either the Company or the Partner on giving the other not less than three months' notice in writing to expire on or at any time after the initial one year period.

    2. Either party may immediately terminate this Contract on giving notice to the other party if:-

       1. the other party commits any breach of these terms and conditions and fails to remedy the breach within 14 days following receipt of a notice from the other party giving details of the breach and requiring its remedy; or

       2. the other party passes a resolution for winding up, a court of competent jurisdiction makes an order for winding up or a petition is presented for the winding up of the other party; or

       3. an administration order is made in relation to the other party or a receiver is appointed or an encumbrancer takes possession of the assets of the other party; or

       4. the other party makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection of creditors generally.

    3. Termination of this Contract for whatever reason will not affect:-

       1. the accrued rights and liabilities of he parties arising in any way out of this Contract as at the date of termination;

       2. provisions expressed to survive this Contract which will remain in full force and effect.

    4. Subject to clause 14.3 upon termination of this Contract for any reason:-

       1. all rights and obligations of the parties shall terminate;

       2. the Company will return all Raw Data to the Partner;

       3. the Company will retain and be entitled to continue to use all Calculated Data for such purposes as it shall decide except that the Company will ensure that all references to the name of the Partner or a Client are deleted from it;

       4. the Partner and its Clients will no longer be able to access IPMS or use the Password.

15. Technical Support

    1. During the term of this Contract the Company will provide the technical support services for the benefit of the Partner as set out in Schedule 3.0.

16. Sales and Marketing Support

    1. During the first six months of this Contract the Company will assist in the training of the Partner's employees. Such training will comprise details set out in Schedule 4.0.

17. Assignment

    1. Neither party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Contract without the prior written consent of the other, which consent shall not be unreasonably withheld or delayed.

18. Force majeure

    1. Neither party shall be deemed to be in breach of this Contract or otherwise liable to the other party for any delay in performance or any non-performance of any obligations under this Contract (and the time for performance shall be extended accordingly) if and to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that party ("an event of force majeure")

    2. The party relying on the clause 18.1 shall promptly notify the other party of the nature and extent of the circumstances giving rise to the event of force majeure.

    3. If the event of force majeure in question prevails for a continuous period in excess of [three] months after the date on which it began, the other party may give notice to the party terminating this Contract. The notice to terminate must specify the termination date, which must be not less than, 30 days after the date on which the notice to terminate is given. Neither party shall have any liability to the other in respect of termination of this Contract due to an event of force majeure, but rights and liabilities which have accrued prior to termination shall not be affected.

19. Waiver

    1. No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of it, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of it or the exercise of any other right, power or privilege.

20. Application of Agreement

    1. This Agreement supersedes and annuls all former agreements between the parties hereto relating to the subject matter of this Agreement

    2. Any amendment to this Agreement shall be in writing and signed by both parties.

21. Law

    1. This Agreement shall be read and construed and have effect according to the Laws of England and as a contract made in England