‍PARTIES

1. Causa Ltd (t/a Optifi) incorporated and registered in England and Wales with company number 14871419 whose registered office is at York Hub, Popeshead Court Offices, York, England, YO1 8SU (the Supplier);
2. The person named in the Order (being the company or other business procuring the Services from the Supplier) (the Customer).

BACKGROUND

1. The Supplier has developed certain software applications and platforms (currently known as the Optifi platform) which it makes available to subscribers via the internet for the purpose of optimizing pricing on ecommerce websites.  
2. The Customer wishes to use the Supplier's service in its business operations.
3. The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier's service subject to the terms and conditions of this Agreement.

AGREED TERMS

1. INTERPRETATION
   
   1. The definitions and rules of interpretation in this clause apply in this Agreement.

Application: any application or grouping of connected modules developed by the Supplier incorporating the Software, whether deployed via the cloud, hosted on the Supplier’s servers or the Customer’s or any combination of the same. 

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 2.2(c).

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

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 12.1.

Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services but excluding individual feedback and other data collected by the Supplier directly including in their capacity as a Data Controller pursuant to the Supplier’s public facing privacy notice as in force from time to time.

Documentation: the documents made available to the Customer by the Supplier online via https://getoptifi.com or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of this Agreement.

Free Limit: the limit set out in Schedule 1.  

End User: any person, other than an Authorised User, whom the Customer permits access to use any Application. For example and without limitation this will include clients of the Customer.

Fees: refers to any fees or charges payable pursuant to this agreement and/or as detailed in Schedule 1 or any Order. 

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies. Whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or an Authorised User (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the cybersecurity Directive ((EU) 2016/1148), Commission Implementing Regulation ((EU) 2018/151), the Network and Information systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Implementation Period: the period of time, as estimated in the applicable Order, during which the Services described under the Implementation Plan are delivered. 

Implementation Plan: the plan or description of the requirements for successful implementation and configuration of the Application, including as set out in an Order. 

Initial Subscription Term: the initial term of this Agreement being the Implementation Period and the period of the first twelve (12) calendar months after Implementation or as otherwise set out in an Order. 

Mandatory Policies: the Supplier's policies and codes listed in Schedule 2, as amended by notification to the Customer from time to time.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Order: means a written document setting out any commercial terms that are agreed for the Services. The Order shall specify any terms which differ from the Price or number of Authorised Users set out in this Agreement. The differential terms of the Order will only take precedence over this Agreement with respect to the Initial Subscription Term, Fees and the number of permitted Authorised Users. 

Platform: the Supplier’s infrastructure and cloud computing platform and runtime environment, as described in the Documentation, including as incorporated into an Application. 

Renewal Period: the period described in clause 15.1.

Services: the services provided by the Supplier to the Customer under this Agreement via the URL or website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation or in the Order, including the provision of and access to the Platform as amended by the Supplier from time to time.

Software: the software applications provided by the Supplier as part of the Services.

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

Subscription Term: has the meaning given in clause 15.1  (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services Policy: the Supplier's policy for providing support in relation to the Services as made available at https://causa.tech/support-policy or such other website address as may be notified to the Customer from time to time.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 10.1 which permit access to and use of the Services and the Documentation in accordance with this Agreement.

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.

2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
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.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
9. A reference to writing or written excludes fax but not email.
10. References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
11. Time shall not be of the essence in relation to any obligation of the Supplier arising pursuant to this Agreement or any Order. 

‍

2. PLATFORM LICENSE 
   
   1. Subject to the Customer not being in breach of its payment obligations under clause 10, or the restrictions set out in this clause and the other provisions of this Agreement, the Supplier hereby grants to the Customer a term based, non-exclusive, non-transferable right and license without any right to grant sublicenses, at all times for its own business purposes:
      
      1. to permit the Authorised Users to use the Services and the Documentation solely in conjunction with and to support the use of Applications;
      2. to make the Application(s) available to End Users via the Platform; 
   2. In relation to the Authorised Users, the Customer undertakes that:
      
      1. Unless otherwise agreed the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the fair usage cap applicable to the the number of User Subscriptions it has purchased from time to time as set out in the Order. If the Customer reaches or exceeds the fair usage cap as notified by the Supplier from time to time the Supplier shall notify the Customer promptly to discuss and determine an appropriate course of action in order to seek to accommodate the Customer’s anticipated operating volumes. As at February 2024 the Supplier’s soft cap is up to 1000 users;
      2. each Authorised User shall keep a secure and unique password for their use of the Services and Documentation which is not used for any other purpose, that such password shall be changed at suitable intervals and that each Authorised User shall keep their password confidential;
      3. it shall maintain a written, up to date list of current Authorised Users with higher levels of access (such as super-users or other users with administrative permissions) and provide such list to the Supplier within five (5) Business Days of the Supplier's written request at any time or times;
      4. it shall permit the Supplier or the Supplier's designated auditor to audit the Customer in order to establish and audit compliance with this Agreement. Each such audit may be conducted no more than once per quarter, or following any Change of Control, at the Supplier'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;
      5. if any of the audits referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and
      6. if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid  Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within 10 Business Days of the date of the relevant audit.
   3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
      
      1. is unlawful, harmful, threatening, hateful, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property;
      7. otherwise breaches any other terms, conditions, policies or rules on acceptable use put forward by the Supplier or its licensors where applicable from time to time;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause howsoever arising.

4. The Customer shall not:
   
   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 this Agreement:
      
      1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
      2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
   2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
   3. use the Services and/or Documentation to provide any services to third parties; or
   4. subject to clause 23.1, 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
   5. attempt to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services or to obtain or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
   6. introduce or permit the introduction of, any Virus or Vulnerability into the Services or the Supplier's network and information systems.
5. The Customer shall use all reasonable endeavours to prevent 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 the Supplier.
6. The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3. IMPLEMENTATION 
   
   1. the Supplier shall identify any need to configure and integrate the Platform to create an Application according to the agreed Implementation Plan incorporating the requirements of the Customer. 
   2. The Customer shall use all reasonable endeavours to furnish the Supplier with such information and assistance as the Supplier reasonably requires to assess or carry out the implementation services, including preparation of the Implementation Plan where relevant. 
   3. Upon completion of the Services set out in the Implementation Plan the Subscription Term shall commence immediately and thereafter continue in accordance with clause 15. 
   4. The Supplier shall specify any key Customer dependencies in the Implementation Plan which may impact the delivery of the implementation Services. 
   5. Where the Services required to carry out the Implementation Plan include an element of discovery or creative solution finding then the Fees shall be estimated by the Supplier in the Implementation Plan and shall be charged on a time basis according to the Supplier’s standard rates in force from time to time and the Supplier shall aim to achieve a result which closely matches the requirements of the Implementation Plan as far as reasonably possible taking into account the timelines and Fees attributable to the Services to be delivered during the Implementation Period. 
   6. The Implementation Period shall be deemed to be completed when the Supplier confirms that the results substantially match the final requirements of the Implementation Pan. 
4. ADDITIONAL USER SUBSCRIPTIONS
   
   1. Where the Subscription Fees are based on the number of users (End Users or Authorised Users as applicable), subject to clause 4.2 and clause 4.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement. Alternatively where the Subscription Fees are based on the scale and nature of the Customer’s enterprise then if the Customer may be subject to a Change of Control it must notify the Supplier in writing so that the Supplier may reassess the level of Subscription Fees payable for the Services following that Change of Control. 
   2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld). Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 30 days of its approval of the Customer's request.
   3. If the Supplier approves the Customer's request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of 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 the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable) unless otherwise agreed.
5. SERVICES
   
   1. The Supplier 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.
   2. The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
      
      1. planned maintenance carried out during the maintenance window of 10.00 pm to 4.00 am UK time; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours' notice in advance.
   3. The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier's standard customer support services during Normal Business Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier 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 the Supplier's then current rates.
6. DATA PROTECTION

The Supplier and the Customer shall comply with the terms of the Supplier’s standard Data Processing Agreement relating to the processing of any personal data under this Agreement and required for the provision of the Services. The Supplier shall additionally comply with its own Privacy Policy as published from time to time.  

7. THIRD PARTY PROVIDERS

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. The Supplier 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 the Supplier. The Supplier 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. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

8. SUPPLIER'S OBLIGATIONS
   
   1. The Supplier shall perform the Services substantially in accordance with the Documentation and with reasonable care and skill. The Supplier warrants that the Platform shall operate substantially in accordance with its specification and the Documentation during the Subscription Term.
   2. The Supplier's obligations at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the terms of clause 8.1, Supplier will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 8.1.
   3. The Supplier:
      
      1. does not warrant that:
         
         1. the Customer's use of or access to the Services via the Platform, any Application or otherwise will be uninterrupted or error-free;
         2. that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; 
         3. the Software or the Services will be free from Vulnerabilities or Viruses; 
         4. the Software, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
      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 similar failures affecting backup or recovery services, 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.
   4. This Agreement shall not prevent the Supplier 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.
   5. The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
   6. The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
9. CUSTOMER'S OBLIGATIONS
   
   1. The Customer shall:
      
      1. provide the Supplier with:
         
         1. all necessary co-operation and assistance in relation to this Agreement; and
         2. all necessary access to such information and resources or virtual environments as may be required by the Supplier;

in order to provide the Services, including but not limited to any required Customer Data, security access information and configuration details;

2. without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement including, but not limited to, those relating to the protection of personal data in relation to the processing of personal data in autonomous systems or involving profiling;
3. be responsible for determining whether the Services offer appropriate safeguards for Customer’s use of the Services, including, but not limited to, any safeguards required by applicable laws or guidance, prior to transmitting or processing, or prior to permitting any Authorised User to transmit or process, any data or communications via the Services;
4. carry out all other Customer responsibilities 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
5. ensure that the Authorised Users and the End Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's or End User’s breach of this Agreement;
6. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
7. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time, in particular any minimum requirements recommended or required by the Supplier from time to time; 
8. be, to the extent permitted by 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 the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's or third party network connections or telecommunications links or caused by the internet; and
9. not access the Services in a manner intended to avoid incurring fees. 

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. The customer acknowledges that the services may be affected adversely by poor quality or incorrect data and as such it is important for the Customer to maintain suitable processes and controls to guard against the inclusion of such erroneous information. 
3. The Customer hereby grants to the Supplier a non-exclusive, non-transferable right for the duration of this Agreement to carry out any acts that would otherwise be restricted by any of the Customer's Intellectual Property Rights in the Customer Data and all Applications for the purpose of enabling the Supplier to provide the Services to the Customer in accordance with this agreement and the purpose of adding value to the Platform as a whole. 
4. The Customer acknowledges and agrees that the Supplier’s machine learning and similar methodology may incorporate learning points arising from the Customer’s use of the Services in creating Derivative Output which may be retained by the Supplier indefinitely (”Derivative Output”). The Supplier shall ensure that any Derivative Output which is accessible by use of the Platform shall not be traceable back to or identify the Customer in anyway.  
5. To the extent that it is or becomes applicable under the circumstances, the Customer (its representatives, successors, and permitted assigns) agrees, represents, and warrants to the Supplier that:  
   
   1. The Customer shall clearly post, maintain, and abide by a publicly accessible privacy notice at the point of collection (a) satisfies the requirements of applicable data protection laws and (b) describes Customer’s use of the Services.
   2. The Customer shall obtain all necessary permissions and valid consents, including consents required by a parent or guardian, to lawfully process any data for the purposes of providing the Services and for the transfer of such data to the Supplier.
   3. It has the necessary expertise, experience, and qualifications to appropriately supervise access and use of the Services. 

10. CHARGES AND PAYMENT
    
    1. The Customer shall pay any applicable Fees to the Supplier in accordance with the terms of any Order. Ad-hoc professional Services Fees for consulting or similar work carried out by the Supplier shall be charged on a time basis in arrears no more often than monthly. The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions annually in advance in accordance with this clause 10 and Schedule 1. 
    2. The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
       
       1. its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
          
          1. on the Effective Date for the Fees payable in respect of the Implementation Period Services and the Initial Subscription Term; and
          2. subject to clause 15.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
       2. its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
          
          1. on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
          2. subject to clause 15.1, 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.

3. If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
   
   1. the Supplier may, on no less than 5 Business Days' notice to the Customer and without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
   2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC Innovation Bank Limited  in the UK from time to time (or above zero whichever is greater), commencing on the due date and continuing until fully paid, whether before or after judgment.
4. All amounts and Fees stated or referred to in this Agreement:
   
   1. shall be payable in pounds sterling;
   2. are, subject to clause 14.3(b), non-cancellable and non-refundable, unless otherwise agreed in writing;
   3. are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate.
5. If, at any time whilst using the Services, the Customer exceeds the quantity or amount of usage space (in particular any hard or soft limitations advised to be part of the pricing), or the disk storage space specified in the Documentation, the Supplier shall charge the Customer, and the Customer shall pay, the Supplier's or relevant third party’s then current excess usage and/or data storage fees as applicable. The relevant excess usage and/or data storage fees current as at the Effective Date are set out in Schedule 1 as may be updated by notice to the Customer by the Supplier from time to time.
6. The Supplier shall be entitled to increase its Fees including but not limited to the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 4.3, the support fees payable pursuant to clause 5.3 and/or the excess storage fees payable pursuant to clause 10.5 at the start of each Renewal Period upon 30 days' prior notice to the Customer and Schedule 1, or as applicable the Order, shall be deemed to have been amended accordingly.

11. PROPRIETARY RIGHTS
    
    1. The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
    2. The Supplier 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.
    3. Where the Customer makes modifications to the content provided as part of the Services that does not operate to transfer ownership of those materials to the Customer and the Documentation, Software and Services contained within those materials shall always remain subject to the terms of this agreement and the restrictions on use. The Customer acknowledges the commercial interest of the Supplier in protecting its intellectual property rights in the Platform, Software and Services generally and shall take all reasonable steps to protect those rights, including any actions or omissions expressly requested by the Supplier from time to time. 
12. CONFIDENTIALITY AND COMPLIANCE WITH POLICIES
    
    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 this Agreement in connection with the Services, including but not limited to:
       
       1. the terms of this Agreement or any agreement entered into in connection with this Agreement;
       2. any information that would be regarded as confidential by a reasonable business person relating to:
          
          1. the business, assets, affairs, customers, clients, suppliers, or 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
          2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
       3. any information developed by the parties in the course of carrying out this Agreement and the parties agree that:
          
          1. details of the Services, and the results of any performance tests of the Services, shall constitute Supplier Confidential Information; and
          2. Customer Data shall constitute Customer Confidential Information;
       4. any information detailed in the Schedules.

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

2. The provisions of this clause shall not apply to any Confidential Information that:
   
   1. 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);
   2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
   3. 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; 
   4. the parties agree in writing is not confidential or may be disclosed; or
   5. is developed by or for the receiving party independently of the information disclosed by the disclosing party.
3. Each party shall keep the other party's Confidential Information secret and confidential and shall not:
   
   1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this Agreement (Permitted Purpose); or
   2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 12.
4. A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
   
   1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
   2. at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, any supervisory 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 12.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
6. 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.
7. 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 to be implied from this Agreement.
8. On termination or expiry of this Agreement, each party shall:
   
   1. 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;
   2. 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
   3. certify in writing to the other party that it has complied with the requirements of this clause, 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 law or any applicable governmental or regulatory authority or pursuant to its own privacy notices and policies in respect of information it has procured itself directly as a data controller. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party.
9. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
10. Except as expressly stated in this Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
11. The above provisions of this clause 12 shall survive for a period of two (2) years from termination or expiry of this Agreement.
12. In performing its obligations under this Agreement the Customer shall comply with the Mandatory Policies.

13. INDEMNITY
    
    1. The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation, provided that:
       
       1. the Customer is given prompt notice of any such claim;
       2. the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
       3. the Customer is given sole authority to defend or settle the claim.
    2. The Supplier 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 this Agreement infringes any Intellectual property right as of the Effective Date including copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
       
       1. the Supplier is given prompt notice of any such claim;
       2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and
       3. the Supplier is given sole authority to defend or settle the claim.
    3. In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services 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.
    4. In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
       
       1. a modification of the Services or Documentation by anyone other than the Supplier; or
       2. the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
       3. the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or
       4. the Customer's breach of this Agreement.
    5. The foregoing and clause 14.3(b) state the Customer's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. LIMITATION OF LIABILITY
    
    1. Except as expressly and specifically provided in this Agreement:
       
       1. 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. The Supplier shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer's direction;
       2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
       3. the Services and the Documentation are provided to the Customer on an "as is" basis.
       4. The Customer acknowledges that there is no guarantee or warranty made by the Supplier in respect of use of the Services to improve the Customer’s business or services generally and that the Customer is and shall at all times remain solely responsible for the provision of their own services.  
       5. The Customer acknowledges that the internet and telecommunications providers’ networks are inherently insecure and that the Supplier will have no liability for any changes to, interception of, or loss of Customer Data while in transit via the internet or a telecommunications provider’s network.
       6. Beta offerings are provided “as is” and “as available”. The Supplier makes no warranties and will have no liability for any beta offerings, customer services, or third party services whatsoever.
    2. Nothing in this Agreement excludes the liability of the Supplier:
       
       1. for death or personal injury caused by the Supplier's negligence; or
       2. for fraud or fraudulent misrepresentation.
    3. Subject to clause 14.1 and clause 14.2:
       
       1. the Supplier shall have no liability for any loss of profits, loss of business, wasted expenditure, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses; and
       2. the Supplier's total aggregate liability to the Customer (including in respect of the indemnity at clause 13.2), in respect of all breaches of duty occurring within any contract year shall not exceed the cap. If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, the Supplier’s total liability for those claims shall not exceed the single highest annual cap for those contract years.
       3. In clause 14.3(b) above:
          
          1. cap. The cap shall be equal to one-hundred per cent (100%) of the total Fees paid in the contract year in which the breaches occurred;
          2. contract year. A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.
    4. References to liability in this clause 14 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.
    5. Nothing in this Agreement excludes the liability of the Customer for any breach, infringement or misappropriation of the Supplier’s Intellectual Property Rights.
15. TERM AND TERMINATION
    
    1. This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Implementation Period and the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
       
       1. either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
       2. otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

2. Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
   
   1. the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
   2. 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;
   3. 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 (IA 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 IA 1986or any similar event relating to a sole trader or partnership;
   4. 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;
   5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
   6. 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;
   7. 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);
   8. 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;
   9. 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;
   10. 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;
   11. 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 15.2(c) to clause 15.2(j)(inclusive);
   12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
   13. the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.
   14. there is a Change of Control of the Customer, where the Customer’s License is enterprise based and the Customer does not provide information the Supplier reasonably needs to re-price the Fees. 
3. On termination of this Agreement for any reason:
   
   1. all unpaid charges and amounts shall immediately become due and payable;
   2. all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
   3. 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;
   4. the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier 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. The Supplier 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 the Supplier in returning or disposing of Customer Data; and
   5. 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.
4. Without affecting any other right or remedy available to it, either party may terminate this Agreement, including any Order made under it, for convenience upon giving at least 30 calendar days prior written notice to the other party, such notice to expire no sooner than at the end of the calendar month following the month in which such notice is given. 

16. FORCE MAJEURE

Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for two months, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.

17. CONFLICT

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

18. VARIATION

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

19. WAIVER
    
    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.
    2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES

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

21. SEVERANCE
    
    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.
    2. If any provision or part-provision of this Agreement is deemed deleted under clause 21.1 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.
22. ENTIRE AGREEMENT
    
    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.
    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.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
    4. Nothing in this clause shall limit or exclude any liability for fraud.
23. ASSIGNMENT
    
    1. The Customer shall not, without the prior written consent of the Supplier, 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.
    2. The Supplier 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, provided that it gives prior written notice of such dealing to the Customer.
24. NO PARTNERSHIP OR AGENCY

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).

25. THIRD PARTY RIGHTS
    
    1. 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.
    2. The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
26. COUNTERPARTS
    
    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.
    2. Transmission of a signed counterpart of either this agreement or any Order incorporating this Agreement by reference, whether sent by email (in PDF, JPEG or other agreed format) or letter shall take effect as the transmission of an executed "wet-ink" counterpart of this Agreement. If this method of transmission is adopted, without prejudice to the validity of the agreement thus made, each party shall on request provide the others with the "wet ink" hard copy originals of their counterpart.
    3. No counterpart shall be effective until each party has provided to the others at least one executed counterpart.
    4. This Agreement and any Order may be executed by online signature, or by express email approval, where agreed by the partes in writing from time to time. 
27. NOTICES
    
    1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
       
       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
       2. sent by email to prior agreed upon email addresses
    2. Any notice shall be deemed to have been received:
       
       1. if delivered by hand, at the time the notice is left at the proper address;
       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
       3. 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.
    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.
28. GOVERNING LAW

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.

29. JURISDICTION

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.

1.  – Fees

Fees as described in the Order.

2.  - Mandatory Policies

No mandatory policies are applicable.

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