CSP 
Terms and Conditions

The following terms are a replication of the terms signed and agreed by you before obtaining access to C3. These terms are provided as a reminder of the agreed terms and conditions. To request a copy of your signed contract, please contact your account manager. If you do not have a signed contract for any reason whatsoever, upon ticking accept these terms will be deemed to apply to your use of C3.

THIS AGREEMENT is made on by and between:

1. E-PLENISH LIMITED, a company incorporated in England and Wales (company number 05922577) whose registered office is situated at Centurion House, Barnes Wallis Road, Fareham, Hampshire, England, PO15 5TT (“Supplier”); and

2. [CUSTOMER], a company incorporated in England and Wales (company number [●]) whose registered address is at [●] (“Customer”),

(each a “Party” and together the “Parties”).

BACKGROUND:

1. Supplier is a provider of technology sourcing and technology-related services via its CSP Control Centre (“C3”).

2. Customer wishes to utilise Supplier’s C3 to obtain certain products and Services for their use.

   IT IS AGREED as follows:

   
   

   1. DEFINITIONS AND INTERPRETATION

      1. Unless otherwise expressly specified, the principles of interpretation set out in Paragraph 1 of Schedule 1 (Definitions and Interpretation) shall apply in construing this Agreement.

      2. In this Agreement, the terms set out in Paragraph 2 of Schedule 1 (Definitions and Interpretation) shall have the meanings given to them in that Schedule.

      3. To the extent there is a conflict between any provision of this Agreement (excluding the Schedules, and Order) and any provision contained in any Schedule, or Order, the documents shall have the following order of precedence:

         1. this Agreement (excluding the Schedules, and order);

         2. the Schedules; and

         3. the Order.

            unless a document with a lower order of precedence expressly and specifically amends a document with a higher order of precedence.

   2. Use of C3

      1. Upon signature of this Agreement, the Supplier will provide the Customer with access to C3.

      2. The Customer will be permitted to use C3 to procure the Services.

      3. The Supplier reserves the right to grant and revoke access to C3 at any time at the Supplier’s complete discretion.

      4. The Customer must keep all login details provided for C3 confidential and must only share such login details with those Customer Associated Persons who are authorised to make purchases on behalf of the Customer. The Customer shall be fully liable for any and all Orders (as defined below) submitted on C3 using the Customer’s login details. By sharing the Customer’s login details for C3 with any Customer Associated Person, the Customer is warranting that the Customer Associated Person has the relevant authority to contractually bind the Customer and make purchases on the Customer’s behalf and the Customer will be liable for all Fees associated with Orders submitted by any Customer Associated Persons, or any individual, in receipt of login details from the Supplier or Customer.

      5. C3 may be used by the Customer to monitor their on-going Services, including seeing their current Orders and reports, and make any changes or amendments to the Services as permitted by this Agreement. In the event that the Customer is able to make changes to the Services that are not permitted by this Agreement (“Unauthorised Changes”)via C3, the Customer will remain fully liable for the Fees of the Order as if the Unauthorised Changes had not occurred and the Supplier shall not be required to release the Customer from such an Order regardless of any information or options displayed on C3.

      6. Any and all requests for changes, upgrades, downgrades, cancellation and termination of Services purchased via C3 or such requests made via C3, must at all times be made in compliance with this Agreement and the Supplier shall have no liability to the Customer for any incomplete, inaccurate, misleading, or erroneous information displayed on C3.

      7. C3 is the Supplier’s e-commerce platform, some plans and services described in this Agreement or available on C3, may not be made available to the Customer. Any and all plans and services made available to the Customer via C3 are at the Supplier’s sole discretion and simply by virtue of their inclusion within this Agreement or C3 does not confer any right on the Customer to access such plans and services.

   3. Purchase of Services

      1. The Customer may place an order for new Services by adding the Services to the cart and clicking the “Place Order” box (the “Order”) on C3.

      2. Each Order is an offer by the Customer to buy the Services specified in the Order subject to this Agreement.

      3. The Supplier will not be obligated to provide the Services until such a time as the Supplier commences providing the Services for the specified Order. The Supplier reserves the right to reject any Order received from the Customer through C3 at any time.

      4. C3 allows the Customer to check and amend any errors before submitting an Order. Please check the Order carefully before confirming it. The Customer is solely responsible for ensuring that the Order is complete and accurate, and the Supplier shall have no liability to the Customer in the event that the Customer submits an inaccurate, incomplete or erroneous Order and the Customer shall be liable for all Fees in relation to such Order.

      5. The Customer is fully liable for any and all Orders placed on C3 and once an Order is submitted in accordance with Clause 3.1 it shall be binding on the Customer and the Customer shall be liable to pay any and all Fees relating to the Order, regardless of if the Order is erroneously submitted or is incomplete or inaccurate.

      6. The Services provided by the Supplier do not include the Cloud Services, and the Supplier accepts no responsibility or liability in relation to the Cloud Services.

      7. For the avoidance of doubt the Services do not include:

         1. administration of any software environment(s) within the provisioned Cloud Services including but not limited to operating systems and applications; or

         2. any implementation of applications on Customer devices for any Office 365 subscriptions where desktop applications are provided.

         3. Any provisioning, implementation or support services for Dynamic 365

      8. The Services shall be provided remotely from the Supplier’s premises.

      9. Any changes, modifications, upgrades, downgrades and cancellations of any Order must be done in accordance with Clause

   4. SERVICE PERFORMANCE

      1. The Supplier shall provide, or shall procure the provision of, the Services to Customer for the relevant Term subject to and in accordance with the provisions of this Agreement.

      2. The Services shall comprise the following activities:

         1. Provisioning of Cloud Services – Supplier will provision and configure the subscribed Cloud Services in line with Customer’s requirements as submitted in the Order;

         2. Access to Cloud Services – Supplier will make Cloud Services provisioned within (A) above accessible remotely, enabling Customer access. No access will be provided to Customer to manage or configure the underlying Cloud Services and, for the avoidance of doubt Supplier is not responsible, and bears no liability, for the Cloud Services being available (or for any other aspect of the provision of the Cloud Services);

         3. Telephone response and call logging – Supplier will provide telephone-based support to understand Customer issues and requests in respect of the Cloud Services, and log calls within Supplier’s service desk application;

         4. Call triage and management – Supplier will perform initial diagnosis to clarify the type and severity of each incident or request in respect of the Cloud Services, direct the call to the appropriate responder

            group and monitor progress of resolution against SLAs. Where Supplier cannot resolve an incident such as a failure in the underlying Cloud Services, it will be escalated to Microsoft for resolution in accordance with the terms of the Microsoft Terms (as defined below). Whilst Supplier will provide reasonable assistance to Microsoft in connection with actions taken by Microsoft to resolve the escalated incident, Supplier is not responsible, and bears no liability, for the resolution of any such incident or failure relating to the Cloud Services; and

         5. Billing – on a monthly basis Supplier will aggregate consumption of Cloud Services by Customer and invoice Customer at the pricing applicable to the Cloud Services from time to time.

      3. For the avoidance of doubt, the Cloud Services shall be provided to the Customer by Microsoft pursuant to the relevant Third-Party Terms between the Customer and Microsoft and shall not form part of the Services.

      4. Customer agrees to comply at all times with: (A) the UK Microsoft Cloud Customer Agreement available at https://msdn.microsoft.com/en-us/partner-center/agreements (as such agreement may be amended or updated from time to time); and (B) such other Microsoft terms and conditions relating to the Cloud Services as may be notified to Customer by Supplier from time to time (each of (A) and (B) being “Microsoft Terms”). The Microsoft Terms shall constitute Third Party Terms for the purpose of Clause 8.5 of this Agreement.

      5. No Service levels are provided in respect of the Services.

      6. Service levels for Cloud Services to which the Services under any Order relate (such service levels, as they apply to the Cloud Services from time to time, being the “Microsoft Service Levels”) are detailed at the following location: http://www.microsoftvolumelicensing.com/Downloader.aspx?DocumentId=12736 or such other location as may be notified to Customer by Supplier from time to time. For the avoidance of doubt, Supplier shall not be responsible for ensuring or procuring that the Cloud Services are provided in accordance with the Microsoft Service Levels.

      7. The Parties acknowledge and agree that no Service Credits shall be payable to the Customer by the Supplier in respect of any Service Failures relating to the Services.

      8. In the event the relevant Microsoft Service Level for Cloud Services is not achieved within any month, Customer will have the right to request a service credit from Microsoft in accordance with the Microsoft Terms (a “Microsoft Service Credit”). Any such request must be made to Supplier within 21 days of the billing period to which the request relates and include: (i) a detailed description of the incident; (ii) information regarding the time and duration of any unscheduled downtime; (iii) the number and location(s) of any affected user(s); and (iv) any attempts to resolve the incident at the time of occurrence. For the avoidance of doubt, all such requests by Customer for Microsoft Service Credits constitute requests only and the award of Microsoft Service Credits (if any) to Customer in respect of Cloud Services is entirely conditional on the award of Microsoft Service Credits by Microsoft following a claim by Supplier in accordance with Clause 4.9 below.

      9. If Supplier regards Customer’s request for Microsoft Service Credits in respect of Cloud Services to be valid, Supplier will liaise with Microsoft and use reasonable endeavours to claim from Microsoft the benefit of Microsoft Service Credits in respect of the relevant Cloud Services on behalf of Customer.

      10. Where more than one failure to achieve the relevant Microsoft Service Level occurs in respect of Cloud Services in any month during the Terms of the Order, Microsoft Service Credits shall accrue on a cumulative basis but shall not, in aggregate in respect of the relevant month, exceed the maximum Microsoft Service Credits available for that month under Microsoft’s terms in respect of the relevant Cloud Service(s) suffering the failure.

      11. Microsoft Service Credits that are agreed by Microsoft following a claim made by Supplier in accordance with clause 4.9 above will be accrued in respect of a given month and will be paid by Supplier in the form of a credit note or a discount in the next invoice following calculation of the relevant Microsoft Service Credit. As Microsoft provides the Cloud Services and associated Microsoft Service Levels, claims for Microsoft Service Credits must be agreed by Microsoft before they are eligible for payment. If Microsoft do not agree to any claim for Microsoft Service Credits, Supplier will have no obligation to pay Microsoft Service Credits to Customer.

   5. FEES

      1. In consideration of the provision of the Services by Supplier under this Agreement, Customer shall pay the Fees to Supplier in accordance with the provisions of this Clause5, Clause 6, Clause 7 and the Order.

      2. Supplier reserves the right to amend the Fees with immediate effect upon notice to Customer in the event of:

         1. where the Fees are based on costs and expenses incurred in a currency other than GBP, any currency exchange rate fluctuation impacting the Fees on or after the date on which the Fees were set; or

         2. where the Fees are based on costs and expenses incurred by Supplier to any third party (“Third Party Costs”), any increase in such Third-Party Costs on or after the date on which the Fees were set.

      3. The Supplier reserve the right to increase the Fees at any time in line with the percentage increase in the Retail Prices Index in the preceding 12-month period where such increase has a material effect on the Fees.

      4. It is acknowledged that, despite the Supplier’s reasonable efforts, some of the Services on C3 may be incorrectly priced. If the correct price for the Services is higher than the price stated on C3, the Supplier will contact the Customer as soon as possible to inform the Customer of this error and the Supplier will give the Customer the option of continuing to purchase the Services at the correct price or cancelling the Order. The Supplier will not process the Order until the Customer has given instructions. If the Supplier is unable to contact the Customer, the Supplier reserves the right to treat the order as cancelled.

      5. If the Supplier has mistakenly accepted and processes an Order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by an individual offering similar services to the Supplier as a mispricing, the Supplier may cancel the supply of the Services and refund the Customer any Fees paid.

   6. INVOICING AND PAYMENT

      1. Supplier shall invoice Customer for the Fees at the intervals specified in the Order. If no such intervals are specified in the Order, Supplier shall invoice Customer for accrued Fees monthly in arrear or as otherwise agreed between the Parties.

      2. All invoices shall be issued and paid in GBP.

      3. Customer shall pay each undisputed invoice it receives within thirty (30) days after receipt of such invoice by bank transfer into a bank account nominated in writing by Supplier from time to time.

      4. Without prejudice to any other right or remedy of Supplier under this Agreement or otherwise, if any undisputed amounts in an invoice are not paid by their due date, then Supplier may charge interest on such undisputed amounts on a daily basis from the date the undisputed amount fell due to the actual date of payment (inclusive) at the rate of four (4) per cent. per annum over the base lending rate of the Bank of England from time to time.

      5. If Customer has a bona fide dispute in relation to any invoice submitted under this Agreement, that dispute shall be managed in accordance with the Dispute Resolution Procedure, provided that:

         1. Customer shall Notify Supplier of such dispute within ten (10) Business Days after receipt of such invoice;

         2. the Dispute Resolution Procedure shall apply only to the disputed portion of the relevant invoice;

         3. all undisputed amounts shall be paid by Customer in accordance with this Clause 6; and

         4. to the extent that Customer is obliged, following resolution of the dispute, to pay any amount, then Supplier may charge interest in accordance with Clause 6.4 from the original due date until the actual date of payment.

   7. TAXATION

      1. The Fees shall be exclusive of any amounts in respect of VAT.

      2. The Customer shall be liable for and pay by way of an additional consideration a sum equal to the amount of VAT properly chargeable in respect of such supply (against delivery by the Supplier of a valid VAT invoice).

      3. Any payment to be made under this Agreement shall be made in full, free and clear of any set-off, restriction, condition or counterclaim and without any deduction or withholding for or on account of Tax, save as required by law.

      4. If any deduction or withholding for or on account of Tax is required by law to be made from any sum payable under this Agreement by one party (the “Payer”) to another (the “Recipient”), the Payer shall, when making the payment to which the deduction or withholding relates, pay to the Recipient such additional amount as will ensure that the Recipient receives the same total amount that it would have received if no such withholding or deduction had been required.

   8. CUSTOMER OBLIGATIONS

      1. Customer shall obtain and maintain all software licences required for the use of third party software within or in connection with the Cloud Services and shall indemnify Supplier and keep Supplier fully and effectively indemnified against all actions, claims and proceedings from time to time made against Supplier or any member of Supplier Group and all Losses suffered, made or incurred by Supplier or any member of Supplier Group as a consequence of or in connection with Customer’s failure to obtain or maintain any such software licences.

      2. Customer agrees to comply with the following dependencies (each a “Dependency”):

         1. provide to Supplier and/or its Sub-Contractors all Customer Data specified by Supplier as being required to enable Supplier to perform the Services. Customer shall ensure the accuracy and completeness of all Customer Data it provides. Without prejudice to any terms of this Agreement, if Customer Data has been requested and is incomplete or incorrect or if new information is uncovered during the course of providing the relevant Services which was not anticipated by Supplier, any work required to correct problems or delays caused by the use of such incomplete or inaccurate information and any additional work required by the discovery of such unanticipated information, shall be charged by the Supplier at their then current hourly rate;

         2. provide to Supplier and/or its Sub-Contractors reasonable access to Customer Personnel with the relevant authority, skill and knowledge in respect of Customer and its business and operations;

         3. use reasonable endeavours to mitigate the impact of situations where Supplier has advised Customer that the timeline for any Services is at risk of delay due to non-performance or delay in respect of the performance of a Dependency on the part of Customer;

      3. Supplier shall not be in breach of this Agreement and shall not be liable for any failure to deliver the Services or perform its obligations under this Agreement to the extent that such failure is caused by Customer’s failure to fulfil, or to procure the fulfilment of, any Dependency.

      4. Customer shall reimburse any additional costs and expenses incurred by Supplier as a result of Customer’s failure to perform a Dependency.

      5. Where Supplier Notifies Customer of any third-party terms that are applicable to any products (whether hardware, software or otherwise) or Services supplied (or the supply of which is procured) by Supplier under this Agreement (“Third Party Terms”), Customer shall:

         1. comply at all times with such Third-Party Terms; and

         2. indemnify Supplier and keep Supplier fully and effectively indemnified against all actions, claims and proceedings from time to time made against Supplier or any member of Supplier Group and all Losses suffered, made or incurred by Supplier or any member of Supplier Group as a consequence of or in connection with Customer’s failure to comply with such Third-Party Terms.

      6. It is the Customer’s responsibility to ensure that:

         1. the terms of the Order are complete and accurate;

         2. the Customer cooperates with the Supplier in all matters relating to the Services;

         3. The Customer has obtained and maintained all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and

         4. The Customer complies with all applicable laws.

      7. In providing the Service, the Supplier has assumed that the Customer has appropriate skills to manage operating systems and applications deployed within the Cloud Services and will only engage Supplier for support with the activities defined within the Services. The Supplier will not be liable to the Customer in the event this assumption is incorrect.

   9. REPRESENTATIONS AND WARRANTIES

      1. Each Party warrants and represents to the other Party that:

         1. it has the requisite capacity, power and authority to enter into and perform this Agreement;

         2. its obligations under this Agreement constitute binding obligations in accordance with the relevant terms;

         3. the execution and delivery of, and the performance of the obligations under, this Agreement will not:

            1. result in a breach of any provision of its memorandum or articles of association;

            2. result in a breach of, or constitute a default under, any instrument by which it is bound;

            3. result in a breach of any order, judgment or decree of any court or governmental agency by it; or

            4. require the consent of its shareholders or of any other person;

         4. it is not insolvent or unable to pay its debts and no liquidator (other than in respect of a solvent liquidation), administrator, receiver, administrative receiver or manager has been appointed by any person in respect of it or all or substantially all of its assets, and no application has been made or petition presented to a court, or notice given or filed, or resolution passed or meeting of its shareholders or

            directors been convened for the purpose of considering a resolution in relation to the appointment of such an officer nor has any analogous procedure, step or event taken place in any jurisdiction; and

         5. as at the Effective Date, it is not aware of anything likely to lead to any of the events referred to in Clause 9.1(D) above.

      2. Save as expressly set out in this Agreement, neither Party gives any representation or warranty (express or implied) in respect of the subject matter of this Agreement.

      3. The Customer is solely responsible for ensuring that any Service, plan, product or subscription is suitable for the Customer’s needs, the Supplier makes no representations or warranties that any Service, plan, product or subscription is fit for any particular purpose (whether known to the Supplier or not) or compatible with any other product, plan, service or subscription used by the Customer.

   10. LIMITATION OF LIABILITY

       1. Nothing in this Agreement shall exclude or limit the liability of any Party for:

          1. death and/or personal injury resulting from the negligence of that Party or its directors, officers, employees, contractors or agents;

          2. fraud and/or fraudulent misrepresentation by that Party or its directors, officers, employees, contractors or agents;

          3. any Loss incurred by the other Party due to the wilful default of that Party; or

          4. any other Losses to the extent they are not capable of being excluded or limited by Applicable Law.

       2. Subject to Clause 10.1, Supplier shall not be liable to Customer under this Agreement or any Order, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, for any indirect or consequential loss or damage or any:

          1. loss of profits or revenue;

          2. loss of sales;

          3. loss of business;

          4. loss of agreements or contracts;

          5. loss of anticipated savings;

          6. loss of, or damage to, goodwill; or

          7. loss or corruption of data,

             (in each of cases(A) to (G), whether direct or indirect).

       3. Subject to Clause 10.1 the maximum aggregate liability of Supplier for all claims arising under or in connection with this Agreement or the Customer’s use of C3, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, shall be limited to a sum equal to 50 per cent of all Fees paid in the period of 12 months prior to the event giving rise to the relevant claim.

       4. Subject to Clause 10.1 the maximum aggregate liability of Supplier for all claims arising under or in connection with an Order, whether in contract or tort (including negligence), for misrepresentation, breach of any duty (including strict liability) or otherwise, shall be limited to a sum equal to 50 per cent of all Fees invoiced in the month in which the liability arose.

       5. The Supplier provides the Services only, the Customer is responsible for any and all data used in the Cloud Services and the Supplier shall have no liability to the Customer for any loss of data for any reason whatso ever, including any loss which results from the exercise of the Supplier’s rights under clause 12.

       6. The Customer shall indemnify Supplier and keep Supplier fully and effectively indemnified against all actions, claims and proceedings from time to time made against Supplier or any member of Supplier Group and all Losses suffered, made or incurred by Supplier or any member of Supplier Group as a consequence of or in connection with, the Customer’s failure to comply with the terms of this Agreement, or for any Orders placed via C3 in contradiction with this Agreement.

   11. TERM

       1. This Agreement shall come into force on the Effective Date and shall continue until terminated by either party in accordance with Clause 12 of this Agreement.

       2. Each Order shall commence on the Service Commencement Date and shall continue for the length of time specified on C3 and in the Order (the “Initial Term”) The Customer shall only be entitled to cancel or amend such Order in accordance with the provisions of clauses 11.3, 11.4, 11.5, 11.6, 11.7, and 11.8.

       3. Each Order for a Commit Plan shall renew automatically for successive additional periods, equal to the duration of the Initial Term (each, an “Additional Period”), unless the Customer unticks the auto renew box on C3 for the specific order they do not wish to automatically renew. For Orders containing multiple different Services, Cloud Services or product types, the Customer must untick the auto renew box on each individual product line. The Customer is entitled to remove the auto renewal in accordance with this clause 11.3 at any time prior to the commencement of the Additional Period, where the Customer fails to untick the auto renew box prior to the commencement of the Additional Period the Customer will be fully liable for all Fees during the Additional Period unless cancelation is permitted under 11.4, 11.5, or 11.6.

       4. Where the Customer places an Order for a Commit Plan, the Customer shall only be entitled to cancel the Services (and associated Cloud Services) within such plan, within 5 Business Days from the Service Commencement Date, where the Customer does not request cancelation within 5 Business Days of the Service Commencement Date, the Customer will be liable for the total Fees for the Commit Plan as laid out in the Order for the total intended Initial Term or Additional Term, this Clause 11.4 applies to the cancellation of the whole of the Commit Plan, or for any quantity of that Commit Plan

       5. Where the Customer places an Order for a Commit Plan, the Customer shall only be entitled to downgrade to a lower level subscription plan or lower quantity of products, within 5 Business Days from the Service Commencement Date, where the Customer does not request a downgrade to the subscription plan within 5 Business Days of the Service Commencement Date, the Customer will be liable for the total Fees for the Commit Plan as laid out in the Order for the total intended Initial Terms or Additional Term, this Clause 11.5 applies to the downgrade of the whole of the Commit Plan, or for any quantity of that Commit Plan. In the event that the Customer has upgraded their subscription plan in accordance with Clause 11.6 the right to downgrade shall only apply to the extent that the Customer may revert to the level of their previous subscription.

       6. The Customer is entitled to upgrade the level of subscription or quantity of subscription, on any Commit Plan during the course of the Initial Term and any Additional Period (together the ‘Term’), provided always that the Customer will only be entitled to downgrade that subscription in accordance with Clause 11.5 and shall not be entitled to cancel such subscription. In the event that the Customer does upgrade during the Term, the Service Commencement Date referred to in Clause 11.5 shall refer to the date on which the upgrade was provisioned by the Supplier.

       7. Where the Customer has purchased a Flex Plan, the plan will automatically renew at the end of every month for rolling one-month periods (each an Additional Period) unless the Customer unticks the auto renew box on C3 for the specific Order they do not wish to automatically renew. For Orders containing multiple different Services, Cloud Services or product types, the Customer must untick the auto renew box on each individual product line. The Customer is entitled to remove the auto renewal in accordance with this clause 11.7 at any time prior to the commencement of the Additional Period, where the Customer fails to untick the auto renew box prior to the commencement of the Additional Period the Customer will be fully liable for all Fees during the Additional Period. Any changes to the Order requested by the Customer, including requests to upgrade, downgrade and cancel the Order will only take effect within the next billing month (within a maximum of 31 days) after the Customer has requested a change on C3 or notified the Supplier of the required change. The Customer shall remain fully liable for the Fees of the Flex Plan at all times up until the end of the rolling monthly term.

       8. Where applicable and made available by the Supplier, if a Customer has purchased a Legacy Plan, the Customer may amend or cancel their order at any time.

       9. The rights granted to the Customer under clause 11.3, 11.4, 11.5, 11.6, 11.7, and 11.8 can only be exercised by the Customer by clicking on the “manage” button on C3 applicable to the specific Service or subscription the Customer wishes to manage. The Customer must click the “submit change” button and wait for a confirmation message to ensure the required changes are processed, failure to do so will result in the changes not being submitted. The Supplier will not be liable to the Customer where the Customer does not click the submit change button or wait for a confirmation message, or attempts to exercise these rights by any other means or not in compliance with this Agreement, and the Customer will remain fully liable for all Fees associated with the Order, Cloud Services and Services as such changes have not been submitted (including any Fees due as a result of the Order, Cloud Services, or Services automatically renewing). In the event that the Customer receives an error message, contact should be made with the Supplier immediately so the issue can be investigated, the Customer will remain liable for all Fees (and any Fees due as a result of the Order, Cloud Services or Services automatically renewing) while the Supplier investigates, and thereafter if the Supplier determines that the change was not permitted or submitted in accordance with this Agreement.

       10. The Supplier will not be liable to the Customer if the Customer does not comply with the provisions of clause

           11.9 and attempts to exercise the rights contained in clause 11.3,11.4, 11.5, 11.6, 11.7 and 11.8 by any other

           means, including by contacting the Supplier, Supplier Group or Supplier Personnel and the Customer will remain fully liable for all Fees associated with the Order, Cloud Services, and Services as such changes have not been submitted in accordance with this Agreement(including any Fees due as a result of the Order, Cloud Services or Services automatically renewing).

       11. The Customer shall indemnify Supplier and keep Supplier fully and effectively indemnified against all actions, claims and proceedings from time to time made against Supplier or any member of Supplier Group and all Losses suffered, made or incurred by Supplier or any member of Supplier Group as a consequence of or in connection with, the Customer’s cancellation, amendment, upgrade or downgrade of any Order, Cloud Services or Services.

   12. TERMINATION OF THE AGREEMENT

       1. The Supplier may terminate this Agreement and any associated Order, by notice to the Customer with immediate effect if:

          1. any step is taken with a view to the winding-up, dissolution or re-organisation of the Customer (other than for the purpose of a solvent liquidation or re-organisation);

          2. any step is taken with a view to the appointment of an administrator, liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver or manager in relation to the Customer or any of its assets;

          3. the holder of any security interest in relation to any of the assets of the Customer takes any step to enforce that security;

          4. any of the assets of the Customer are subject to attachment, sequestration, distress execution or any similar process;

          5. the Customer is or is deemed to be unable to pay its debts as they fall due, admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;

          6. the value of the assets of the Customer is less than the amount of its liabilities, taking into account its contingent and prospective liabilities;

          7. any step is taken in relation to a composition, compromise, assignment or arrangement with any creditor of the Customer;

          8. any step is taken to obtain a moratorium in relation to the Customer or any of its indebtedness; or

          9. anything analogous to any of the circumstances, events, steps, legal proceedings or other procedures described in Clauses 12.1(A) to (H) occurs in any jurisdiction.

       2. If Customer fails to pay when due any amount due under or in connection with this Agreement on the due date for payment and remains in default for seven (7) days following receipt of notice from Supplier requiring payment of such amount, Supplier may, at its sole discretion and by notice with immediate effect, either:

          1. suspend its provision of the Services under this Agreement, in whole or in respect of the Services to which the relevant non-payment relates, until such time as payment has been made by Customer in full; or

          2. terminate this Agreement, in respect of the Services to which the relevant non-payment relates.

       3. On expiry or termination of this Agreement, each Order then in force shall continue until it is terminated or expires in accordance with the terms of such Order and this Agreement.

       4. Termination or expiry of this Agreement shall not affect any rights, liabilities or remedies arising under this Agreement prior to such termination and Clauses 10 and 18 shall continue to apply to such rights, liabilities and remedies.

       5. If the Supplier terminates this Agreement pursuant to Clause 12.1 or 12.2, Customer shall pay immediately to Supplier:

          1. all amounts due in respect of Services, Cloud Services or Order provided on or prior to the date of termination save always that where the Customer has purchased a Commit plan, as identified and defined in any Order, the total annual cost of the plan will be payable upon termination; and

          2. all costs and expenses incurred or payable by Supplier in connection with such termination that would not have been incurred by Supplier but for such termination (including, without limitation, costs and expenses incurred or payable by Supplier in favour of third parties by way of:

             1. irrecoverable pre-paid fees or charges and any other investments made or costs incurred in relation to or for the purposes of this Agreement;

             2. payments in respect of continuing third party arrangements relating to the Services that cannot be terminated on the termination of this Agreement; and

             3. termination charges payable upon the termination of third-party arrangements relating to the Services,

                provided that where such costs and expenses do not relate exclusively to the Services, Customer shall pay an allocated proportion of such costs and expenses specified by Supplier (acting reasonably).

       6. Each Party shall notify the other Party as soon as reasonably practicable following the occurrence of any of the circumstances, events, steps, legal proceedings or other procedures described in Clause 12.1.

       7. Termination or expiry of this Agreement shall be without prejudice to any provision which expressly or by implication is intended to survive termination or expiry, including the provisions of Clauses 10, 12.3 to 12.6, , 15.4, 15.5, 17, 18, 24, 30 and Schedule 1 (Definitions and Interpretation).

   13. SUB-CONTRACTORS

       1. The Supplier may sub-contract or delegate the performance of any of its obligations under this Agreement.

   14. ASSIGNMENT AND NOVATION

       1. Neither Party may assign, novate or otherwise transfer or dispose of, or create any trust in relation to, any or all of its rights and obligations under this Agreement without the prior written consent of the other Party, except that:

          1. Supplier may without the consent of Customer assign, novate or otherwise transfer any or all of its rights and obligations under this Agreement to:

             1. an Affiliate of Supplier; or

             2. a purchaser of all or substantially all of the business of Supplier to which this Agreement relates; and

          2. Supplier may without the consent of Customer assign, novate or otherwise transfer or dispose of any or all of its rights to any receivable due to Supplier under this Agreement to any third party.

   15. INTELLECTUAL PROPERTY

       1. Save as otherwise expressly set out in this Agreement neither Party (nor, in the case of Supplier, any Sub-Contractor) shall receive any right, title or interest in respect of the IPR owned or controlled by the other Party.

       2. Supplier hereby grants (and shall procure the grant of) to Customer for the Term a royalty-free, non-exclusive, non-transferable (other than in accordance with Clause 14) licence (with no right to sub-license) of:

          1. the Supplier IPR; and

          2. Third Party IPR, to the extent it is:

             1. used in the supply of the Services;

             2. necessary for the receipt and use of the Services under this Agreement; and

             3. freely sub-licensable by Supplier to Customer,

                in each case solely for the purpose of and to the extent necessary for Customer’s receipt and use of the Services in accordance with this Agreement.

       3. Customer hereby grants (and shall procure the grant of) to Supplier a royalty-free, non-exclusive, non-transferable (other than in accordance with Clause 14) licence of the IPR in the Customer Materials and any other Customer IPR for the Term (with no right to sub-license other than to Sub-Contractors) solely for the purposes of and to the extent necessary for Supplier’s provision of the Services and performance of its obligations (and for no other purpose) in accordance with this Agreement.

       4. Customer shall indemnify Supplier and keep Supplier fully and effectively indemnified against any claim of alleged or actual infringement of any Third Party IPR brought against Supplier or any Supplier Personnel, arising out of or in connection with:

          1. use of Customer Materials in the development of, or the inclusion of the Customer Materials in the Services;

          2. any modification of the Services, other than by or on behalf of Supplier; or

          3. compliance with Customer’s specifications or instructions.

       5. Supplier shall:

          1. give to Customer prompt notice of any IPR Claim of which it becomes aware;

          2. not make any admission or take any other action, which might be prejudicial thereto without the prior consent of Customer (such consent not to be unreasonably withheld or delayed);

          3. give to Customer conduct of any litigation which may ensue and all negotiations for a settlement of the IPR Claim (provided that Customer shall consult in good faith with Supplier on an ongoing basis in respect of such IPR Claim, and shall take into account the reasonable commercial interests of Supplier

             in connection therewith); and

          4. give to Customer, at Customer’s request and expense, all reasonable assistance in connection with any such IPR Claim.

   16. DATA PROTECTION

       1. Unless otherwise stated, terms and expressions used in this Clause 16 and not defined in this Agreement shall have the meaning assigned to them in the Data Protection Legislation relevant to the processing in question.

       2. With respect to the Parties' rights and obligations under this Agreement (and solely to the extent that Supplier processes any Data pursuant to this Agreement), the Parties agree that Customer is the data controller and that Supplier is the data processor.

       3. To the extent that Supplier processes Data pursuant to this Agreement, Supplier agrees to:

          1. take appropriate technical and organisational measures against the unauthorised or unlawful processing of the Data and against accidental loss or destruction of, or damage to, such Data, by:

             1. taking reasonable steps to ensure the reliability of any Supplier Personnel who have access to the Data; and

             2. ensuring a level of security appropriate to the harm that may result from such unauthorised or unlawful processing or accidental loss, destruction or damage and appropriate to the nature of the Data;

          2. process the Data only in accordance with Customer’s instructions; and

          3. provide to Customer such information regarding compliance with Clauses 16.3(A) and 16.3(B) as it may from time to time reasonably require to enable Customer to comply with its obligations as the data controller in respect of the Data.

       4. To the extent that Supplier processes Data pursuant to this Agreement, the provisions of Article 28(3)(a) to (h) of the General Data Protection Regulation (Regulation 2016/679) shall be incorporated into this Agreement as binding obligations on Supplier.

       5. Notwithstanding the content of this Clause 16, the Customer acknowledges and agrees that Supplier or its Sub-Contractors may process, store or transfer Customer Data and/or Data within or to any country where Supplier or its Affiliates or Sub-Contractors use facilities or equipment to provide or support the Services, or where the Cloud Services are located. Without prejudice to the terms of the Agreement or Applicable Law (including Data Protection Legislation), Customer shall be responsible for obtaining all necessary consents and taking all such other steps as are necessary to enable Supplier to process, store and transfer Customer Data and/or Data in the course of providing the Services.

   17. CONFIDENTIALITY

       1. Each Party shall:

          1. treat as confidential all Confidential Information;

          2. not, without prior written consent of the other Party, directly or indirectly communicate or disclose (whether in writing or orally or in any other manner) Confidential Information to any other person other than as provided in this Clause 17;

          3. ensure that the Confidential Information is protected with at least the same security measures and degree of care that would apply to its own confidential information;

          4. procure that any person to whom Confidential Information is disclosed complies with, and is aware of, the restrictions set out in this Clause 17 as if such person were a Party to this Agreement; and

          5. not use any Confidential Information, other than in connection with, and only to the extent necessary for, the performance of its obligations under this Agreement, save that Customer may use Confidential Information for the purposes of using and enjoying the Services.

       2. Either Party may disclose Confidential Information to its directors, officers, and employees (and, in the case of Supplier, to any member of the Supplier Group and to the directors, officers, and employees of any Sub-Contractor) in each case solely to the extent necessary to exercise its rights or perform its obligations under this Agreement.

       3. Notwithstanding Clause 17.1, either Party may disclose the other Party’s Confidential Information:

          1. if and to the extent required by Applicable Law or by any Regulator or securities exchange whether or not, in the case of information provided to a Regulator or securities exchange, the requirement for information has the force of law;

          2. to its professional advisers and auditors provided they have a duty to keep such information confidential;

          3. to the extent the information has come into the public domain through no fault of that Party;

          4. to the extent the other Party has given prior written consent to the disclosure, (such consent not to be unreasonably withheld or delayed); and

          5. if and to the extent such information was properly in the possession of the recipient on a non-confidential basis and not to the knowledge of the recipient as a result of a breach of any duty of confidentiality attaching thereto prior to it being acquired by or furnished to it.

       4. Any information to be disclosed pursuant to Clauses 17.3(A) or 17.3(B) to the extent permitted by Applicable Law, shall only be disclosed after notice to the other Party.

       5. Each Party will, to the extent permitted by Applicable Law, immediately notify the other Party of the full circumstances of any breach, or threatened breach, of this Clause 17 upon becoming aware of such breach or threatened breach.

       6. Each Party shall indemnify and keep the other Party fully and effectively indemnified from and against all Losses arising out of, or in connection with, any breach by it of this Clause 17.

       7. Notwithstanding the expiry or early termination of this Agreement, Clauses 17.1 to 17.6 (inclusive) shall continue to apply to each Party without limit in time.

   18. GOVERNING LAW AND JURISDICTION

       1. This Agreement is governed by and shall be construed in accordance with the laws of England and Wales. Any matter, claim or dispute arising out of or in connection with this Agreement, whether contractual or non-contractual, is to be governed by and determined in accordance with the laws of England and Wales.

       2. The Parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute, proceeding, suit or action arising out of or in connection with this Agreement.

   19. FORCE MAJEURE

       1. Neither Party (the “Affected Party”) shall be liable to the other Party for any delay or failure to perform any of its obligations hereunder to the extent such delay or failure is due to a Force Majeure Event provided that:

          1. the Affected Party could not have avoided such circumstances by taking precautions which it ought reasonably to have taken in accordance with good industry practice;

          2. the Affected Party has used its reasonable endeavours to mitigate the effect of such circumstances and to continue to perform its affected obligations; and

          3. the Affected Party shall not be excused performance of its obligations unaffected by the Force Majeure Event.

       2. The Affected Party shall:

          1. on the occurrence of a Force Majeure Event, promptly Notify the other Party (such notice to contain details of the circumstances giving rise to the Force Majeure Event and its anticipated duration); and

          2. upon the cessation of the Force Majeure Event, promptly Notify the other Party and recommence performance of its affected obligations.

       3. If a delay or failure to perform any of the Affected Party’s obligations due to a Force Majeure Event continues for more than thirty (30) Business Days, the other Party shall be entitled to terminate one or more affected Orders on notice with immediate effect.

   20. COSTS AND EXPENSES

       Except as stated in this Agreement or otherwise agreed between the Parties, each Party shall pay its own costs and expenses in relation to the negotiation, preparation, execution and carrying into effect of this Agreement.

   21. COUNTERPARTS

       1. This Agreement may be executed in any number of counterparts, and by the Parties on separate counterparts, but shall not be effective until Customer and Supplier have executed at least one counterpart.

       2. Each counterpart shall constitute an original of this Agreement, but all the counterparts shall together constitute but one and the same instrument.

   22. THIRD PARTY RIGHTS

       The Parties do not intend that any term of this Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999 Act, by any person who is not a party to this Agreement.

   23. NOTICES

       1. A notice shall only be effective if it is in writing and in the English language. Email shall be permitted for the giving of a notice.

       2. All notices shall be sent to a Party at its address or number and for the attention of the individual set out below:

          
          

          Supplier

          Address: Centurion House, Barnes Wallis Road, Segensworth, Fareham, Hampshire, PO15 5TT Attention: Company Secretary

          Email: notices@vohkus.com

          Customer

          Address: The address set out on page 1 of this Agreement (or such other address notified to Supplier in accordance with this Clause 23),

          Email: An email address notified to Supplier by Customer in accordance with this Clause 23,

          provided that a Party may change its notice details on giving notice to the other Party of the change in accordance with this Clause 23. That notice shall only be effective on the date falling five (5) Business Days after the notification has been received or such later date as may be specified in the notice.

          
          

       3. Any notice shall, in the absence of earlier receipt, be deemed to have been duly given as follows:

          1. if delivered personally, upon obtaining signature of receipt of delivery;

          2. if sent by first class post, two (2) Business Days after the date of posting; and

          3. if sent by email, at 9am on the next Business Day after the time it was sent.

   24. ANNOUNCEMENTS AND PUBLICITY

       1. Neither Party shall make any:

          1. public announcement concerning the transactions contemplated by this Agreement or any ancillary matter; or

          2. reference to the other Party in any of its advertising or promotional material, without the prior written approval of the other Party, such approval not to be unreasonably withheld or delayed. This Clause. 24.1 does not apply in the circumstances described in Clause 24.2.

       2. Notwithstanding Clause 24.1, any Party hereto may make an announcement concerning this Agreement or any ancillary matter:

          1. if required by Applicable Law; or

          2. if required by any Regulator, securities exchange or regulatory or governmental body to which that Party is subject or submits or intends to submit, wherever situated.

       3. The provisions of this Clause 24 shall apply without limit in time.

   25. SEVERABILITY

       If any provision or any part thereof contained in this Agreement is or shall be declared or become unenforceable, invalid or illegal for any reason whatsoever, the other terms and provisions of this Agreement shall remain in full force and effect as if the same had been executed without the offending provision appearing therein and the Parties shall negotiate in good faith to agree a replacement provision or part in place of such offending provision, such provision or part to have an equivalent economic and commercial effect to the offending provision or part.

   26. NO PARTNERSHIP

       Nothing in this Agreement and no action taken by Customer or Supplier under this Agreement shall constitute a partnership, association, joint venture or other co-operative entity between Customer and Supplier or any Sub-Contractor.

   27. FURTHER ASSURANCE

       Each Party shall do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by this Agreement.

   28. REMEDIES AND WAIVER

       1. No delay or omission by the Supplier in exercising any right, power or remedy provided by law or under this Agreement shall:

          1. affect that right, power or remedy;

          2. operate as a waiver of it; or

          3. operate as an affirmation of this Agreement.

       2. The single or partial exercise of any right, power or remedy provided by law or under this Agreement shall not unless otherwise expressly stated preclude any other or further exercise of it or the exercise of any other right, power or remedy.

       3. The rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.

   29. VARIATION

       Save as otherwise provided in this Agreement, the provisions of this Agreement may not be varied except in writing and signed by an authorised representative of Customer and Supplier.

   30. ENTIRE AGREEMENT

       1. This Agreement (together with any agreement concluded by the Parties pursuant to Clause 29) constitutes the whole and only agreement between the Parties relating to its subject matter and supersedes and excludes all prior agreements or arrangements in that regard made between them.

       2. Except in the case of fraudulent misrepresentation, each Party acknowledges that in entering into this Agreement it is not relying upon any pre contractual statement which is not set out in this Agreement.

       3. Except in the case of fraudulent misrepresentation, no Party shall have any right of action against any other Party to this Agreement arising out of or in connection with any pre contractual statement except to the extent that it is repeated in this Agreement.

       4. For the purposes of this Clause 30, “pre contractual statement” means any draft, agreement, undertaking, representation, warranty, promise, assurance or arrangement of any nature whatsoever, whether or not in writing, relating to the subject matter of this Agreement made or given by any person at any time prior to the Effective Date.

IN WITNESS whereof the Parties hereto have signed this Agreement on the date first before written.

Signed by

Frank O’leary

for and on behalf

of E-PLENISH LIMITED

Signed by

for and on behalf

of CUSTOMER NAME

SCHEDULE 1 - DEFINITIONS AND INTERPRETATION

1. Interpretation

   In construing this Agreement, unless otherwise expressly specified:

   1. references to Clauses, Paragraphs, Sections, and Schedules, are to clauses, paragraphs and sections of, and and schedules, to, this Agreement;

   2. use of either gender includes the other gender, and use of the singular includes the plural and vice versa;

   3. references to a “company” shall be construed so as to include any corporation or other body corporate, wherever and however incorporated or established;

   4. references to a “person” shall be construed so as to include any individual, firm, company or other body corporate, government, state or agency of a state, local or municipal authority or government body or any joint venture, association, partnership or limited partnership (whether or not having separate legal personality);

   5. a reference to any statute or statutory provision shall be construed as a reference to the same as it may, from time to time, be amended, modified or re-enacted;

   6. any reference to a “day” (including within the phrase “Business Day”) shall mean a period of twenty-four (24) hours running from midnight to midnight;

   7. references to a “month” are to a calendar month and “year” are to a calendar year;

   8. references to a “quarter” are to the periods of January to March, April to June, July to September and October to December, in any calendar year, and “quarterly” shall be interpreted accordingly;

   9. references to “indemnifying” any person against or with respect to any circumstance shall include indemnifying and keeping it harmless, on an after-Tax basis, from all actions, claims and proceedings from time to time made against it and all Losses suffered, made or incurred by it as a consequence of or in connection with that circumstance;

   10. references to “costs” and/or “expenses” incurred by a person shall include any amount in respect of VAT comprised in such costs or expenses for which neither that person nor, if relevant, the representative member of the VAT group to which that persons belongs is entitled to credit as VAT input tax;

   11. a reference to the performance of an obligation or a computation of time “from” a date shall include that date;

   12. a reference to any other document in this Agreement is a reference to that other document as amended, varied, novated or supplemented (other than in breach of the provisions of this Agreement) from time to time;

   13. headings and titles are for convenience only and do not affect the interpretation of this Agreement;

   14. any words following the words “include” or “including” shall be interpreted without limitation to the generality of the preceding words;

   15. general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words;

   16. the rule known as the ejusdem generis rule shall not apply and accordingly general words introduced by the word “other” shall not be given a restrictive meaning by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; and

   17. the Schedules, form part of this Agreement and shall have the same force and effect as if expressly set out in the body of this Agreement, and any reference to this Agreement shall include the Schedules.

2. Definitions

In this Agreement, the following terms and expressions shall have the following meanings: