Terms and Conditions | Proteus Project Software

General Terms and Conditions (March 2025)

Thank you for using Proteus. These terms and conditions of use apply to Customers and Users use of the Platform and Services. If something on this page leaves you confused, just email us at support@xergy.com and we’ll happily explain it.

If you have experienced technical problems while using the Platform and Services please email us at support@xergy.com.

1 Interpretation

1.1 In this Agreement, unless the context requires otherwise:

Affiliate means, with respect to a Party, (i) any entity that is directly or indirectly under the Control of that Party; (ii) any entity which directly or indirectly Controls such Party; and (iii) any entity which is directly or indirectly under the Control of the controlling entity referred to in (ii) above. For these purposes, an entity shall be deemed to Control all other entities which are Controlled by (or are to be deemed Controlled by) entities which it Controls.

Applicable Laws means all applicable statutes, regulations, regulatory requirements, by-laws, ordinances, subordinate legislation and other laws (regardless of their source), including any judicial or administrative interpretation of them, in force from time to time.

Authorised Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.

Back-Up Policy has the meaning given to it in clause 7.7

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

Confidential Information means all confidential information (however recorded or preserved) disclosed by a Party or its Representatives to the other Party whether before or after the date of this Agreement that is either marked as confidential or would be regarded as confidential by a reasonable business person, including:

(a) the existence and terms of this Agreement; and

(b) any information relating to:

(i) 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

(ii) the operations, processes, product information, know-how, methodologies, designs and/or trade secrets of the disclosing Party (or of any member of the group of companies to which the disclosing Party belongs).

Control, Controlled or Controlling means in relation to a body corporate the power of a person to secure (a) by means of the holding of shares or the possession of voting power in or in relation to that or any other body corporate; or (b) by virtue of any powers conferred by the articles of association or other document regulating that or any other body corporate, that the affairs of the first-mentioned body corporate are conducted in accordance with the wishes of that person. In relation to a partnership, means the right to a share of more than one-half of the assets, or of more than one-half of the income, of the partnership.

Customer Data means the data inputted by the Customer, Authorised Users, or Xergy on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.

Data Protection Legislation means all Applicable Laws that relate to data protection, privacy, the use of information relating to individuals and/or the information rights of individuals including, without limitation, the following legislation to the extent applicable from time to time: (a) the Data Protection Act 2018; (b) national laws implementing the Directive on Privacy and Electronic Communications (2002/58/EC) (as updated by Directive 2009/136/EC); (c) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); (d) the GDPR and any national law issued under that Regulation; and (e) any other similar national privacy law.

Documentation means the document made available to the Customer by Xergy online via https://help.proteus-app.com/en/ or such other web address notified by Xergy to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Intellectual Property Rights means any and all proprietary rights, on a worldwide basis, provided under: (a) patent law; (b) copyright law; (c) trademark law (including goodwill); (d) industrial design law; (e) any other statutory provision or common law principle applicable to this Agreement (including domain names, database rights, goodwill, know-how, trade secrets and any other intellectual property rights which exist in any part of the world), which may provide a right in any intellectual property or the expression or use of any intellectual property; and (f) any and all applications, registrations, licenses and agreements in relation to the foregoing.

Losses means all losses, liabilities (including provision for contingent liabilities), damages, settlements, judgments, claims, proceedings, demands, fines, penalties, interest, costs and expenses (including legal fees on a solicitor/client basis and other professional fees).

Normal Business Hours: 8.00 a.m. to 5.00 p.m. local UK time, each Business Day.

Representatives means, in relation to a Party, its Affiliates and its and their respective employees, officers, contractors, subcontractors, representatives and advisers.

Services means the services to be provided by Xergy including the Proteus web app, the website (www.proteus-app.com), and any software, products and services of whatever nature (whether existing now or in the future) made available by Xergy to the Customer under this Agreement, as more particularly described in the Documentation.

Subscription Fees means the subscription fees payable by the Customer to Xergy for the User Subscriptions, as set out in Schedule 1.

Support Services means the support services detailed in the Support Services Policy.

Support Services Policy means Xergy’s policy for providing support services as made available at https://help.proteus-app.com/en/ or such other website address as may be notified to the Customer from time to time.

User Subscriptions means the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

Virus means 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 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 means a weakness in the computational logic (including 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.

Xergy Group means Xergy and any of its Affiliates.

1.2 In this Agreement, unless the context requires otherwise:

(a) references to a recital, section, clause, paragraph, schedule or annex are to a recital, section, clause, paragraph, schedule or annex of this Agreement, references to a section are references to a section of the Order Form, references in a schedule a clause are to a clause of that schedule to this Agreement, a reference to a clause or paragraph number is, unless otherwise specified, a reference to all its sub-clauses or sub-paragraphs and references to a schedule include the annex and other attachments to that schedule, in each case unless specified otherwise;

(b) headings clauses, schedules, annexes and paragraphs are inserted for convenience only and shall be ignored in interpreting this Agreement;

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

(d) references to this Agreement or any other document are to this Agreement or that document as in force for the time being and as amended, supplemented, varied, modified, renewed or replaced or extended from time to time in accordance with the requirements of this Agreement or that document (as the case may be);

(e) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;

(f) unless the context otherwise requires, a reference to one gender shall include a reference to other genders;

(g) all periods which are expressed to commence and end between two dates shall be inclusive of such dates;

(h) a reference to Applicable Laws shall, unless otherwise stated, include all subordinate legislation (as defined by section 21(1) of the Interpretation Act 1978) and shall be as the same is in force at the Commencement Date and as may from time to time thereafter be amended, re-enacted or replaced; and

(i) a reference to writing or written includes e-mail unless expressly stated otherwise.

2 User Subscriptions

2.1 Subject to the Customer’s compliance with the terms of this Agreement (including this clause 2 and the Customer purchasing the User Subscriptions in accordance with clauses 3.3 and clause 9.1), Xergy hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:

(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;

(c) each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than as required by the Customer’s own IT policies;

(d) notwithstanding clause 2.2(c), each Authorised User shall keep their password confidential;

(e) it shall permit Xergy or Xergy’s designated auditor to audit: (i) the Services in order to establish the name and password of each Authorised User; and (ii) the Customer’s compliance with this Agreement. Each such audit may be conducted no more than once per quarter, at Xergy’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(f) if any of the audits referred to in clause 2.2(e) reveals that or if Xergy becomes aware, or has reason to suspect, that any password has been provided to any individual who is not an Authorised User, then without prejudice to Xergy’s other rights, the Customer shall promptly disable the relevant individual’s password and access to the Services and Xergy shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in clause 2.2(e) reveal or if Xergy becomes aware, or has reason to suspect, that the Customer has underpaid Subscription Fees to Xergy, then without prejudice to Xergy’s other rights, the Customer shall pay to Xergy an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 within 10 Business Days of the date of the relevant audit.

2.3 The Customer shall not, and shall procure that Authorised Users shall not access, store, distribute or transmit any:

(a) Viruses; or

(b) any material during the course of its use of the Services that:

(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(ii) facilitates illegal activity;

(iii) depicts sexually explicit images;

(iv) promotes unlawful violence;

(v) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(vi) is otherwise illegal or causes damage or injury to any person or property;

2.4 and Xergy reserves the right, without liability or prejudice to its other rights or remedies under or in connection with this Agreement, to disable, suspend or terminate the Customer’s and or any relevant Authorised Users’, access to the Services in whole or in part.

2.5 The Customer shall not, and shall not permit Authorised Users to:

(a) except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services and/or Documentation (as applicable) in any form or media or by any means; or

(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or

(d) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or use the Services to render time sharing or service bureau services, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or

(f) introduce or permit the introduction of, any Virus or Vulnerability into the Services or Xergy’s network and information systems.

(g) interfere with or disrupt the integrity or performance of the Services or the data contained therein;

(h) attempt to gain unauthorized access to the Products or their related systems or networks;

(i) access the Services to monitor their availability, performance or functionality for benchmarking or other competitive purposes;

(j) access or use the Services in order to:

(i) build or support a competitive product or service;

(ii) build a product using similar ideas, features, functions or graphics of the Services or Documentation; or

(iii) copy any ideas, features, functions or graphics of the Services or Documentation;

(k) scan or otherwise test the Services or any other technology assets owned by or licenced to Xergy for vulnerability or penetration;

(l) remove or obscure any copyright, trademark, or other proprietary notices contained in the Services and/or Documentation;

(m) utilise or seek to utilise any means to circumvent login, password, and other protections put in place to restrict access to certain parts of the Services; or

(n) encourage, aid or permit others under the Customer’s control to do any of the foregoing.

2.6 The Customer prevents any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Xergy.

2.7 Subject to clause 3 and unless otherwise agreed in the Order Form or Schedule 1, User Subscriptions shall be fixed for the Subscription Term. For clarity, the Customer shall not be entitled to any reduction in, rebate of or refund of the Subscription Fees if it does not utilise or consume the full amount of User Subscriptions during the Subscription Term.

3 Additional subscriptions

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in Schedule 1 and Xergy shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with, and subject to, the provisions of this Agreement.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify Xergy in writing. Xergy shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request. Where Xergy approves the request, Xergy shall activate the additional User Subscriptions within one Business Day of its approval of the Customer’s request.

3.3 If Xergy approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of Xergy’s invoice, pay to Xergy the relevant fees for such additional User Subscriptions as set out in Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Xergy for the remainder of the Initial Subscription Term or then-current Renewal Period (as applicable).

4 Services

4.1 Xergy shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on, and subject to, the terms of this Agreement.

4.2 Xergy shall use reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance windows of: (i) 4.00 p.m. and 5.00 p.m. UK time on Mondays and Thursdays; and (ii) 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Xergy has used reasonable endeavours to give the Customer advance notice of the unscheduled maintenance to be performed.

4.3 Xergy will, as part of the Services, provide the Support Services in accordance with the Support Services Policy in effect at the time that the Services are provided. Xergy may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at Xergy’s then-current rates.

5 Data protection

5.1 For the purpose of the Agreement:

(a) “Customer Personal Data” means any Personal Data received by Xergy from or on behalf of Customer, or otherwise obtained by Xergy in connection with the performance of this Agreement, including the Personal Data as more particularly specified in Appendix 1;

(b) “Personal Data” and the terms “process”, “Data Subject(s)”, “Controller”, “Processor”, “processing“, “appropriate technical and organisational measures“, “special categories of personal data” and “Personal Data breach” shall have the meanings given to them in the applicable Data Protection Legislation;

(c) “Domestic Law” means the law of the United Kingdom or a part of the United Kingdom, (including the UK GDPR as defined in s.3(1) of the Data Protection Act 2018, as amended).

5.2 Xergy and the Customer shall comply with all applicable requirements of the Data Protection Legislation which arise in connection with this Agreement. The specific obligations set out in this clause 5 are in addition to and do not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

5.3 Without prejudice to the generality of clause 5.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Customer Personal Data to Xergy (including any subprocessor that Xergy engages in connection with this Agreement for the duration and purposes of the Agreement.

5.4 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Xergy is a Processor in respect of any Customer Personal Data provided to Xergy for the provision of the Services. Appendix 1 sets out the scope, nature and purpose of processing by the Processor, the duration of the processing, the categories of Personal Data and categories of Data Subject. Notwithstanding any other provision in this Contract, the Customer warrants represents and undertakes on an ongoing basis not to make available to Xergy or use the Services in any way that involves the processing of special categories of personal data.

5.5 Without prejudice to the generality of clause 5.2, Xergy shall, in relation to Customer Personal Data:

(a) process Customer Personal Data only on the documented written instructions of the Customer unless Xergy is required by Domestic Law (or any other Applicable Law) to otherwise process that Personal Data. Where Xergy is relying on Domestic Law (or any other Applicable Law) as the basis for processing Customer Personal Data, Xergy shall promptly notify the Customer of this before performing the processing required by the Domestic Law (or other Applicable Law) unless prohibited by the relevant law from so notifying the Customer;

(b) ensure that it has in place appropriate technical and organisational measures designed to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Customer Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Customer Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep that Personal Data confidential unless and to the extent that Domestic Law requires disclosure;

(d) subject to clause 5.8, Xergy shall not transfer any Customer Personal Data outside of the UK or the EEA unless it complies with Data Protection Legislation and ensures appropriate safeguards and transfer mechanisms are in place for the relevant transfer;

(e) provide reasonable assistance to the Customer in responding to any request from a Data Subject regarding the rights set out in Articles 12 to 22 (inclusive) of the UK GDPR. Unless Xergy is prevented from doing so by applicable law, Xergy shall, at the Customer’s request, free of charge, provide a copy of all Customer Personal Data held by Xergy including in the Software at the time when the request is received by Xergy;

(f) shall notify the Customer without undue delay if it receives: (i) a request from a Data Subject to access their Personal Data or a request relating to any Data Subject rights available under the Data Protection Legislation in respect of their personal data; or (ii) an enquiry or complaint from a Data Subject, regulatory authority or any other third party regarding the processing of Customer Personal Data.

(g) in the event of a Personal Data breach impacting Customer Data (including Customer Personal Data), notify the Customer without undue delay after becoming aware of a Personal Data breach, providing Customer with the available information to allow Customer to assess and meet any obligations to report the Personal Data breach under the Data Protection Legislation;

(h) assist the Customer in ensuring compliance with the Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators taking into account the nature of the processing and the information available to Xergy;

(i) at the Customer’s request, Xergy shall delete or return to the Customer all Customer Personal Data after the end of the provision of Services, and delete any remaining copies, including ensuring the same action by its sub-processors; and

(j) to the extent required by Data Protection Legislation, make available to the Customer all information necessary to demonstrate compliance with Xergy’s obligations laid down in this clause 5 and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor.

5.6 The Customer acknowledges and agrees that Xergy may engage third party subprocessors in connection with the provision of the Services. Xergy shall not engage a subprocessor unless that subprocessor is bound by terms, that are substantially the same as those set out in clauses 5.5(a) to 5.5(j) and which respect the conditions referred to in paragraphs 2 and 4 of Article 28 of the UK GDPR. As between the Customer and Xergy, Xergy shall remain fully liable for all acts or omissions of any subprocessor.

5.7 [Where Xergy wishes to appoint any new subprocessor or increase the scope of the subprocessing of any existing subprocessor during the Subscription Term, then it shall notify the Customer at least thirty (30) days prior to the appointment or relevant scope increase and provide the Customer with written details regarding the proposed new subprocessor and/or proposed increase in the scope of the relevant subprocessing. If the Customer objects to the proposed new subprocessor or increased scope of subprocessing, then acting in good faith the parties will work together to resolve such objection. If they are unable to resolve the objection, the Customer may terminate the Agreement and/or the relevant Order Form by notice with immediate effect. The Customer must inform Xergy of any objection to a proposed new subprocessor or proposed increase in subprocessing in writing within fourteen (14) days of receipt of the relevant notification, otherwise the Customer shall be deemed to have accepted the proposed subprocessor. The Customer shall not object to a proposed new subprocessor or proposed increase in the scope of subprocessing unless it has reasonable grounds for doing so. ]

5.8 The Customer’s rights under this Schedule must not be exercised in bad faith to cause the Services to be suspended or frustrated. Any Customer request that, acting reasonably, Xergy believes is inconsistent with this clause 5.8, is disproportionate or goes beyond the provision of Services in any material respect, taking into account the context of the Services and the parties’ obligations under Data Protection Legislation, will be subject to a prior discussion between the parties in good faith and agreement on the scope of services required and the payment of Xergy’s reasonable fees and expenses.

6 Third party providers

6.1 The Customer acknowledges that the Services 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. Xergy 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 Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Xergy. Xergy recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Xergy does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7 Xergy’s obligations

7.1 Xergy shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.

7.2 Xergy’s obligations at clause 7.1 shall not apply to the extent of any non-conformance which is caused by:

(a) use of the Services by the Customer or any Authorised User

(i) contrary to Xergy’s instructions; or

(ii) in breach of the terms of this Agreement; or

(b) any modification or alteration of the Services by any party other than Xergy or Xergy’s duly authorised contractors or agents.

7.3 If the Services do not conform with the terms of clause 7.1, Xergy will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction shall constitute the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.

7.4 Xergy:

(a) does not warrant that:

(i) the Customer’s use of the Services will be uninterrupted or error-free;

(ii) that the Services, Documentation and/or the information obtained by the Customer through, or as a result of, the Services will meet the Customer’s requirements;

(iii) the Services will be free from Vulnerabilities or Viruses; or

(iv) the Services will be complete, useful, fit for purpose or of a particular quality;

(v) the Services or Documentation will comply with any Heightened Cybersecurity Requirements; or

(vi) the Services will be suitable for or be capable of being used by any third party (including any Authorised User); and

(b) shall not be responsible or liable 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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.5 This Agreement shall not prevent Xergy 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 this Agreement.

7.6 Xergy warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7.7 Xergy shall follow its archiving procedures for Customer Data as set out at https://xergy.com/privacy/ or such other website address as may be notified to the Customer from time to time, as such document may be amended by Xergy in its sole discretion from time to time (“Back-Up Policy”). In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Xergy shall be for Xergy to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Xergy in accordance with the archiving procedure described in its Back-Up Policy. Xergy 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 Xergy to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

8 Customer’s obligations

8.1 The Customer shall:

(a) provide Xergy with:

(i) all necessary co-operation in relation to this Agreement; and

(ii) all necessary access to such information as may be required by Xergy;

in order to provide the Services and/or perform its obligations under this Agreement, including but not limited to Customer Data, security access information and configuration services;

(b) comply with all Applicable Laws;

(d) carry out all other Customer responsibilities, dependencies and/or obligations set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Xergy may, at its sole election, adjust any agreed timetable or delivery schedule as reasonably necessary;

(e) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this AgreementAgreement as if they were a Party to it. The Customer shall be responsible and liable to Xergy for any act or omission of its Authorised Users which, if conducted by the Customer, would this Agreementbe a breach by the Customer of any warranties or any other provisions of this Agreement or would be the negligence of the Customer;

(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for Xergy, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

(g) ensure that its network and systems comply with the relevant specifications provided by Xergy from time to time; and

(h) be, to the extent permitted by Applicable Law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Xergy’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;

(i) be responsible for responsible for maintaining the security of its (and its Authorised User’s) devices used to access and/or receive the Services.

(j) be responsible for determining whether the Services, and any results of the Services, are sufficient for and operationally ready to, meet the needs of its business (and its Authorised Users) or to be used for any specific business purpose, and neither Xergy or any of its employees or agents accept any liability for any use to which the Customer puts the Services and/or any results of the Services; and

(k) be responsible for its own software, data, products and services, including validation, error correction, maintenance, back up and reconstruction.

8.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

9 Charges and payment

9.1 The Customer shall pay the Subscription Fees to Xergy for the User Subscriptions in accordance with this clause 9 and Schedule 1.

9.2 The Customer shall on the Effective Date provide to Xergy all relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

9.3 Xergy shall be entitled to invoice the Customer:

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(b) subject to section Error! Reference source not found. of the Order Form and Schedule 1 at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice.

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

(a) Xergy may, on no less than 5 Business Days’ notice to the Customer, and without liability to the Customer, disable the Customer access to all or part of the Services and Xergy shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) 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 the Bank of England 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 this Agreement:

(a) shall, unless otherwise stated in Schedule 1, be payable in pounds sterling;

(b) are, subject to clause 13.3(b), non-cancellable and non-refundable; and

(c) are exclusive of value added tax (and/or any equivalent or similar legislation under Applicable Laws), which shall be added to Xergy’s invoice(s) at the appropriate rate.

9.6 Xergy shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 and/or the support fees payable for the Support Services at the start of each Renewal Period upon 30 days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.

10 Intellectual Proprietary rights

10.1 The Customer acknowledges and agrees that:

(a) Xergy and/or its licensors own all Intellectual Property Rights in the Services and the Documentation;

(b) Xergy shall own any Intellectual Property Rights created as a result of the Services and/or Documentation, excluding any Customer Data;

(c) except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any Intellectual Property Rights in respect of the Services or the Documentation.

10.2 Xergy confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10.3 The Customer shall, at the expense of Xergy, take all such steps as Xergy may reasonably require to assist Xergy, at Xergy’s cost, in maintaining the validity and enforceability of the Intellectual Property Rights of Xergy during the Term.

10.4 The Customer shall not (and shall procure that Authorised Users shall not):

(a) modify, adapt, distort, manipulate, develop, create any derivative work or carry out any act otherwise restricted by Intellectual Property Rights in the Services and/or Documentation, other than as expressly permitted by this Agreement; or

(b) remove, supress or modify in any way any proprietary markings, including any trade mark or copyright notice, or legal disclaimer, instruction or direction as to the use of the Services and/or Documentation.

11 Confidentiality

11.1 The provisions of this clause shall not apply to any Confidential Information that:

(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving Party or its Representatives in breach of this clause 11);

(b) was available to the receiving Party on a non-confidential basis before disclosure by the disclosing Party; or

(c) was, is, or becomes, available to the receiving Party on a non-confidential basis from a person who, to the receiving Party’s knowledge, is not bound by a confidentiality agreement with the disclosing Party or otherwise prohibited from disclosing the information to the receiving Party; or

(d) the recipient can show such Confidential Information was independently developed by it without the aid of any personnel who have or have had access to the disclosing Party’s Confidential Information.

11.2 Each Party shall keep the other Party’s Confidential Information secret and confidential and shall not (or allow its Representatives to):

(a) use any Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement; or

(b) disclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 11.

11.3 A Party may disclose the other Party’s Confidential Information to those of its Representatives who need to know such Confidential Information, provided that:

(a) it informs those Representatives of the confidential nature of the Confidential Information before disclosure;

(b) it procures the Representatives are subject to written confidentiality obligations no less onerous that those in this clause 11; and

11.4 A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by Applicable Laws, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.

11.5 A Party may, provided that it has reasonable grounds to believe that the other Party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other Party of such disclosure.

11.6 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this clause are granted to the other Party or are to be implied from this Agreement.

11.7 The provisions of this clause 11 shall continue to apply after termination or expiry of this Agreement.

11.8 On termination or expiry of this Agreement, each Party shall:

(a) at the other Party’s election, destroy or return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;

(b) erase all the other Party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and

(c) certify in writing to the other Party that it has complied with the requirements of this clause 11.8, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by Applicable Laws or any applicable governmental or regulatory authority. The provisions of this clause 11 shall continue to apply to any such documents and materials retained by a recipient Party.

11.9 The Customer shall ensure that each of its Authorised Users are subject to obligations of confidence no less onerous than the requirements set out in this clause 11 in respect of any Confidential Information to which it may have access.

12 Indemnity

12.1 The Customer shall defend, indemnify and hold harmless on an ongoing basis Xergy and any member of the Xergy Group (and their respective directors, officers, employees, agents, subcontractors, successors, licensees and assigns) in respect of any and all Losses incurred or suffered by or made against any of them and, wholly or in part, resulting directly or indirectly from, or connected in any way with the Customer’s use of the Services and/or Documentation.

12.2 Xergy shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services or Documentation in accordance with the terms of this Agreement infringes the Intellectual Property Rights of any third party, and shall indemnify the Customer for any amounts awarded against the Customer as part of any final judgment or settlement of such claims, provided that:

(a) Xergy is given prompt notice of any such claim;

(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to Xergy in the defence and settlement of such claim, at Xergy’s expense; and

12.3 In the defence or settlement of any claim, Xergy may procure the right for the Customer to continue using the Services and/or Documentation, replace or modify the Services and/or Documentation so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall Xergy, its employees, agents and sub-contractors have any liability to the Customer under or in connection with clause 12.2 to the extent that any claim pursuant to clause 12.2 is based on:

(a) a modification of the Services or Documentation by anyone other than Xergy; or

(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Xergy; or

(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Xergy or any appropriate authority; or

(d) the Customer’s breach of this Agreement.

12.5 This clause 12 sets out the Customer’s sole and exclusive rights and remedies, and Xergy’s (including Xergy’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.

13 Limitation of liability

13.1 Except as expressly and specifically provided in this Agreement:

(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Xergy shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to Xergy by the Customer in connection with the Services, or any actions taken by Xergy at the Customer’s direction;

(b) 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 Laws, excluded from this Agreement; and

13.2 Nothing in this Agreement excludes the liability of Xergy:

(a) for death or personal injury caused by Xergy’s negligence;

(b) for fraud or fraudulent misrepresentation or

13.3 Subject to clause 13.2:

(a) Xergy shall have no liability for any:

(i) loss of profits,

(ii) loss of business,

(iii) wasted expenditure,

(iv) depletion of goodwill and/or similar losses,

(v) loss or corruption of data or information, or

(vi) any special, indirect or consequential loss, costs, damages, charges or expenses; and

(b) subject to clause 13.4, Xergy’s maximum liability to the Customer, in respect of all breach of contract, tort (including negligence), all acts, omissions and default of Xergy and its officers, equity holders, representatives, employees, agents or subcontractors under of in connection with this Agreement shall not exceed 100% of the Subscription Fees paid by the Customer to Xergy under this Agreement.

13.4 Subject to clause 13.2, Xergy’s maximum liability to the Customer under clause 12.2 shall not exceed £2,000,000 (two million pounds) Sterling.

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

13.6 The Parties acknowledge and agree that the limitations and exclusions of liability contained in this Agreement are fair and reasonable in the circumstances and are accepted by the Parties in their entirety.

14 Term and termination

14.1 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:

(a) the other Party commits a material breach of any other term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(b) the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 OR (being an individual) is deemed either unable to pay their debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 OR (being a partnership) has any partner to whom any of the foregoing apply];

(c) the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

(d) the other Party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;

(f) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other Party (being a company, partnership or limited liability partnership);

(g) the holder of a qualifying floating charge over the assets of that other Party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the assets of the other Party or a receiver is appointed over the assets of the other Party;

(i) a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;

(j) any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1(b) to clause 14.1(i) (inclusive); or

(k) the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

14.2 On termination of this Agreement for any reason:

(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;

(b) 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;

(c) Xergy may destroy or otherwise dispose of any of the Customer Data in its possession unless Xergy 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. Xergy 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 Xergy in returning or disposing of Customer Data; and

(d) 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.

15 Force majeure

15.1 Neither Party shall be in breach of this Agreement or otherwise liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 30 days the Party not affected may terminate this Agreement by giving not less than 30 days’ written notice to the affected Party.

16 Conflict

16.1 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 prevail.

17 Variation

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

18 Waiver

18.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

18.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

19 Rights and remedies

19.1 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 Applicable Laws.

20 Severance

20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.

20.2 If any provision or part-provision of this Agreement is deemed deleted under clause 20.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

21 Entire agreement

21.1 This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.

21.2 Each Party acknowledges that in entering into this Agreement 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 this Agreement.

21.3 Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

22 Assignment

22.1 The Customer shall not, without the prior written consent of Xergy, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.

22.2 Xergy may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement.

23 No partnership or agency

23.1 Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24 Third party rights

24.1 Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

24.2 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other person.

25 Counterparts

25.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

25.2 No counterpart shall be effective until each Party has delivered to the other at least one executed counterpart.

26 Notices

26.1 Any notice given to a Party under or in connection with this Agreement shall be in writing and shall be:

(a) 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

(b) [sent by email to the following addresses (or an address substituted in writing by the Party to be served)]:

(i) Xergy: Office 14, Spalding House, Queen Street, Broughty Ferry, Dundee, Scotland DD5 1AJ; and

(ii) Customer: REGISTERED OFFICE ADDRESS.

26.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

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

(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

26.3 This clause 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.

27 Governing law

27.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

28 Jurisdiction

28.1 Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

This Agreement has been entered into on the date stated at the beginning of it.

Ts&Cs

General Terms and Conditions (March 2025)