GENERAL TERMS AND CONDITIONS

Edgify AI Limited

GENERAL TERMS AND CONDITIONS

1. Interpretation

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

Agreement: these General Terms and Conditions (including the Schedules) together with the Purchase Order, and any documents referred to in these General Terms and Conditions and/or the Purchase Order.

Assumptions: the assumptions detailed in the Purchase Order.

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

Claim: has the meaning given to it in clause 8.3.

Commencement Date: the date the services shall commence, as set out in the Purchase Order

Confidential Information: means any information that is identified as being of a confidential or proprietary nature (including trade secrets, information of commercial value and any technological processes) or is by its nature clearly confidential and is made available by one party to the other in relation to this Agreement.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Customer Data: all data provided by Customer to Company in relation to this Agreement in respect of the Company Solution.

Customer Dependencies: the Customer Dependencies detailed in the Purchase Order

Customer Premises: the supermarkets of the Customer, in which the Company Solution will be implemented. The number and location of Customer Premises is set out in the Purchase Order.

Customer Project Manager: shall have the definition given to it in clause 5.1.

Customer Systems: the hardware and software systems of Customer and/or in respect of the Customer Premises, into which the Company Solution will be integrated.

Disclosing Party: the party disclosing Confidential Information.

DPA: the data processing agreement detailed [here].

Effective Date: the effective date of this Agreement, as set out in the Purchase Order.

Good Industry Practice: the exercise of degree of skill and care that would be reasonably expected from a skilled and experienced company engaged in the same type of undertaking, under the same or similar circumstances.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Level 1 Support: support for basic issues or request for information in relation to the Company Solution, as further set out in the Support Services.

Level 2 Support: support for issues that cannot be resolved at a Level 1 Support, relating to technical issues with the Company Solution in relation to model, training, deployment of model, and predictions.

Level 3 Support: support for issues that cannot be resolved at a Level 2 Support, relating to material issues with the Company Solution.

Licence Year: means (i) the 12 month period commencing on the Commencement Date; and (ii) each subsequent 12 month period.

Live Date: has the meaning given to it in clause 2.4

Prediction Confidence: a parameter score that calls out how confident Company is regarding a given prediction produced by the Company Solution. If the confidence score produced by the Company Solution is not sufficiently strong, the Company Solution will regard the prediction as “unknown”, meaning the Company Solution will not return any SKUs as a result of such a prediction (and the Company Solution will not scan the relevant product).

Prediction Rate: a score produced by the Company Solution calculating its accuracy, being the number of times the Company Solution provided a prediction in respect of the Customer’s products, divided by the number of calls to Company where a ground truth was chosen (i.e. where a Customer has chosen one of the Company Solution’s recommendations in respect of those products).

Purchase Order: an order for the purchase of a number of licences to use the Company Solution in the form provided by the Company to Customer from time to time.

Receiving Party: the party receiving Confidential Information.

Specifications: the specifications of the Company System set out in Schedule 3 which may be updated by Company from time to time.

Specified Persons: a party’s employees, affiliates, professional advisers, consultants and authorised representatives.

Support Services: the support services set out in Schedule 1.

Term: the term of this Agreement set out in the Purchase Order.

Third Party Additional Terms: the additional terms and conditions relating to Third-Party Software.

Third Party Software:the third-party software identified [link].

Third Party Provider: the third party supplier identified in the Purchase Order responsible for providing Level 1 Support services as set out in the Support Services.

Training: has the meaning given to it in the Purchase Order.

Updates: a release of the Company Solution which provides minor fixes, improvements and modification of the Company Solution, but excluding any new software capabilities.

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

1.2. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3. Unless the context otherwise requires:

words in the singular shall include the plural and in the plural shall include the singular;
a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time;
a reference to one gender shall include a reference to the other genders; and
any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.4. In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in the schedules, the provision in the body of this Agreement shall take precedence.

1.5. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns.

1.6. References to clauses and Schedules are to the clauses and Schedules of this Agreement and references to paragraphs are to paragraphs of the relevant Schedule.

1.7. The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.

1.8. Unless otherwise set out in this Agreement, a reference to writing or written includes in electronic form and similar means of communication.

2. Integration, Learning Phase and Live Phase

2.1 The Customer will ensure that the Customer Systems, including network connections, are suitable for the integration and use of the Company Solution. The Customer Systems will either be chosen together with the Company, or comply with the equipment specifications set out in Schedule 3. The costs of acquiring and/or upgrading any such Customer Systems will be borne by the Customer. The Customer will ensure that all the Customer Systems are either owned by or licensed to the Customer and can be used for the purpose of this Agreement.

2.2. On the Effective Date, the Customer will provide all information and access reasonably required by the Company in order for the Company to integrate (or facilitate the integration of) the Company Solution onto the Customer Systems.

2.3. Details and specifications regarding the integration, learning phase and live phase process are set out in the Specifications.

2.4. The Company Solution will go live for the purposes of this Agreement once:

the Company Solution has collected sufficient data to train the recognition model contained in the Company Solution and the Prediction Rate, at the Company’s discretion, is sufficiently high; and
the Company has trained and deployed a model of the Company Solution to the Customer in a live environment;

(Live Date).

2.5. The Customer will allow the Company to access the Customer Systems on a continuous basis in order for the Company to evaluate the Company Solution, which includes allowing the Company to track the Prediction Rate and ensure (whether remotely or otherwise) the ongoing improvements in accuracy of the Company Solution.

3. Licence

3.1. Any Purchase Order provided by the Customer to the Company must be in the form that the Company requires from time to time. This Agreement shall be legally formed and the parties shall be legally bound when the Company has received and signed a Purchase Order that has been signed by an authorised signatory of the Customer and submitted by the Customer to the Company. Submission by the Customer to the Company of a Purchase Order shall be deemed to be an offer by the Customer to license access to the Company Solution and receive the associated services delivered under this Agreement from the Company, subject to the provisions of this Agreement, and the Company’s counter-signature on the Purchase Order shall be considered acceptance of such offer, but the requirements for the Company to perform any of its obligations under this Agreement shall be conditional upon its receipt from the Customer of any advance payment of Fees as required under this Agreement.

3.2. In consideration for the Fees, the Company grants the Customer a revocable, non-transferable, non-exclusive, non-sublicensable licence to use the Company Solution on the Customer Systems for the Term and as contemplated under this Agreement. Such licence to the Company Solution extends to any Updates, which may be provided in the Company’s absolute discretion from time to time.

3.3. The licence includes the full deployment and use of the Company Solution throughout the Customer Systems at all relevant Customer Premises. The Purchase Order sets out the number of licences (per device) purchased by the Customer under this Agreement. In the event that the Customer wishes to purchase additional licences, such additional purchase shall be subject to separate Purchase Orders, and each Purchase Order shall be part of this contract.

3.4. In relation to the scope of use:

“use” in the context of clause ‎3.1 is limited to the use of the Company Solution in its executable format for the purpose of processing the Customer Data as contemplated under this Agreement.
the Customer may not use the Company Solution other than as specified herein without the prior written consent of Company;
the Customer has no right (and shall not permit any third party) in any event to copy, adapt, reverse engineer, decompile, disassemble, modify, create derivative works, adapt or make error corrections to the Company Solution in whole or in part. The Company Solution is embedded in the Customer Systems, and any use of, or access to, the Company Solution from within, or by means of, the Customer Systems (whether or not authorised by Company) shall be the responsibility (and liability) of Customer;
the Customer shall not access all or any part of the Company Solution in order to build a product or service which competes with the Company Solution;
the Customer shall not use the Company Solution to provide services to third parties not contemplated in this Agreement;
the Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or other make the Company Solution available to any third party not contemplated in this Agreement;
the Customer shall ensure not to introduce any Virus or Vulnerability to the Company Solution or the network and information systems of the Company;
the Customer is responsible for the security and integrity of the Customer Systems, and all and any networks and connections used, or otherwise relied upon, by the Customer Systems, at all times; and
the Third Party Software shall be deemed to be incorporated within the Company Solution for the purposes of this Agreement (except where provided to the contrary) and use of the Third Party Software shall be subject to the Third Party Additional Terms.

3.5. The Customer shall not use the Company Solution or any other information provided or obtained through this Agreement to create any solution whose expression is substantially similar to that of or competes with the Company Solution.

3.6. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Company Solution, and shall inform the Company as soon as it becomes aware of any unauthorised use of the Company Solution by any person.

3.7. Unless otherwise permitted by the in the Purchase Order, the rights provided under this Clause ‎3 are granted to the Company only, and shall not be considered granted to any of the Company’s subsidiaries or holding companies.

3.8. Subject to clause ‎3.9, the Customer shall allow the Company to inspect and access the Customer Systems, and any records kept in connection with this Agreement, for the purposes of ensuring that Customer is complying with the terms of this Agreement. The Company shall conduct each such inspection no more than twice per year, at the Company’s expense, and this right shall be exercised with reasonable prior notice, remotely, and in such a manner as not to substantially interfere with the Customer’s use of the Company Solution.

3.9. Where the Company is granted access to the Customer Systems, the Company will ensure that only relevant limited personnel (or third party nominated by the Company from time to time) is granted access to the relevant part of the Customer Systems. The Company shall keep all passwords and log-in details provided by the Customer in strict confidence.

4. Fees

4.1. Customer shall pay the Fees to the Company for the use of the Company Solution under this Agreement, to the bank account nominated by Company, within 30 days of the date of the Company’s invoice. No payment shall be considered paid until the Company has received it in cleared funds in full. All Fees are non-refundable.

4.2. The Company reserves the right to increase the Fees annually, and shall provide the Customer with notification of increase of the Fees at least 30 days prior to the end of the relevant License Year.

4.3. The Fees shall include the provision by Company of the Training.

4.4. The Customer shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).

4.5. If the Customer fails to make any payment due to the Company under this Agreement by the due date for payment, then, without limiting the Company’s other remedies under this Agreement or by law, the Company may:

charge interest and other costs on the overdue amount at the rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount;
recover its costs, expenses and charges (including any legal and debt collection fees and costs) in collecting the late payment; and
disconnect the Company Solution and suspend this Agreement until payment has been made in full.

4.6. All sums payable under this Agreement are exclusive of VAT, sales tax or any other tax, for which the Customer shall be responsible.

4.7. All payments due to the Company under this Agreement shall become immediately payable on termination of this Agreement for any reason.

5. Customer’s obligations

5.1. The Customer shall appoint a representative (which may include a Third Party Provider), with sufficient technical knowledge of the Customer Systems, to assist with initial responses to, and assessments of issues, related to the Company Solution, assist with, as well as lead and manage the integration, deployment and Level 1 Support of the Company Solution on the Customer Systems (Customer Project Manager). At its absolute discretion, the Company may nominate a third party to assist the Customer Project Manager with such integration, deployment and Level 1 Support.

5.2. The Customer shall:

co-operate with the Company (or where applicable, the nominated third party) in all matters relating to this Agreement;
provide in a timely manner such access to the Company Systems and data, and other facilities, as the Company reasonably requests;
provide in a timely manner such information, decision making and compliance as the Company may reasonably request, and use reasonable endeavours to ensure that such provision is accurate in all material respects;
carry out all other responsibilities set out in this Agreement in a timely and efficient manner; in the event of any delays in your provision of such assistance as agreed by the parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary;
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the internet (including in accordance with any requirements the Company specify for use of the Company Solution from time to time), and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
report any faults or suspected faults (whether in relation to the Support Services or otherwise) with or in the Company Solution to the Company as soon as reasonably practicable upon discovery;
report to the Company any abuse of the internet (including spam, hacking and phishing) that the Customer considers to have taken place through the use of the Company Solution by any person, and the Customer shall include in such report as much information as it is able to provide to the Company relating to the type of abuse experienced;
license and configure any third party hardware and/or software necessary, and not stipulated in this Agreement as being provided by the Company, for the Customer’s access and use the Company Solution;
be responsible for ensuring that it has the knowledge and expertise necessary to access and make use of the Company Solution;
be responsible for ensuring that, and you hereby warrant and undertake to the Company that, the Customer’s use of the Company Solution:
- subject to Clause ‎8.4, does not infringe the privacy rights or Intellectual Property Rights of any third party;
- does not harm the Company or brings the Company’s or its name into disrepute;
- is not for the purposes of sending spam or other unsolicited communications;
- is not for the purposes of breaching or circumventing the security of any network or internet user; and
- conforms in all respects will all applicable laws, rules, regulations, bye-laws and codes of practice.
have all rights, permissions and consents to enter into, and perform its obligations under, this Agreement; and
comply with all applicable laws, statutes, regulations and bye-laws in relation to the exercise of your rights and performance of its obligations under this Agreement.

5.3. The Customer shall not, without the Company’s prior written consent, at any time from the Effective Date to the expiry of twelve months after termination or expiry of this Agreement, solicit or entice away from the Company, or employ or attempt to employ, any person who is, or has been, engaged as an employee or sub-contractor of the Company.

5.4. The Customer shall inform the Company in writing as soon as possible, and in any event within 6-hours, of any malfunctions or failures of the Company Solution which is causing material harm to the Customer’s business operations (Defects). As the Customer’s sole remedy, the Company will use commercially reasonable efforts to respond to this notice and remedy the Defect in accordance with Schedule 1.

5.5. In the event of a Defect, the Customer shall:

at the Company’s absolute discretion, immediately disconnect:
- the Company Solution with the Defect from the Customer System where the Defect has occurred; or
- disconnect the Company Solution on all Customer Systems of the Customer Premise where the Defect has occurred;
immediately provide the Company with access to the Customer Systems to assist in the identification and rectification of the Defect;
provide any such information or documents as the Company considers reasonably necessary to remedy the Defect; and
ensure that the Customer Project Manager is available and coordinates with the Company as the Company considers necessary to remedy the Defect.

5.6. The Customer shall provide the Company with, or allow the Company access to, operating reports detailing the following information regarding the items that have passed through the Customer Systems on which the Company Solution has been integrated:

numbers of items;

duration of the transaction;

updated price list of the items (PLU/SKU)

quantity/weight of the items; and

any other information as reasonably requested by Company from time to time.

6. Training and Support Services

6.1. The Company (or a third party nominated by the Company) shall provide the Customer Project Manager with Training.

6.2. The Customer Project Manager shall respond to any Level 1 Support request by the Customer, and liaise with the Company (or any third party nominated by the Company from time to time) in relation to any Level 2 or Level 3 Support requests by the Customer.

6.3. The Company will use commercially reasonable efforts to provide (or procure to provide) Level 2 Support and Level 3 Support to the Customer in accordance with Schedule 1.

7. Confidential information

7.1. The Receiving Party agrees that it will, and procures that its Specified Persons will:

keep the Confidential Information secret and confidential;
not use any Confidential Information in any way except to the extent reasonably necessary in connection with this Agreement;
not disclose the Confidential Information or any part of it to any person other than those of the Specified Persons who need to know for the purposes of this Agreement, and only to the extent reasonably necessary to allow them to do so; provided that the Specified Persons comply with the confidentiality obligations in this Agreement as if they were parties to it. not make more copies of the Confidential Information than are reasonably necessary for the purposes of evaluating the Project; and
not discuss any Confidential Information or any other matter relating to this Agreement or our business or affairs or those of our group of companies with any person other than a Specified Person referred to in paragraph (iii) of this clause.

7.2. The restrictions contained in clause ‎7.1 shall not apply to any information was:

known to the Receiving Party, other than under an obligation of confidentiality, prior to its disclosure by the Disclosing Party to the Receiving Party or its Specified Persons;
lawfully available to the Receiving Party from a third party free from any confidentiality restriction;
publicly available, other than as a result of a breach of a confidentiality obligation; or
required by law, the rules of any court or governmental or regulatory body to be disclosed, provided that in each case set out in this sub-clause (d), to the extent permitted, the Receiving Party immediately notifies the Disclosing Party in writing of any request or requirement for disclosure, and of all relevant surrounding circumstances prior to disclosure, and take into account any representations made by the Disclosing Party or instructions received from the Disclosing Party in relation to the disclosure. If the Receiving Party is unable to notify the Disclosing Party before such disclosure is required, the Receiving Party will notify the Disclosing Party immediately after the disclosure has been made and the Receiving Party will use all reasonable endeavours to resist any requirement for disclosure (and to assist the Disclosing Party in resisting the requirement for disclosure) and to maintain the confidentiality of the Confidential Information.

8. Intellectual Property Rights

8.1. The Customer warrants that it owns all the Customer Data provided to or accessed by the Company under this Agreement, and the Customer Data does not infringe on any third parties’ rights. The Customer grants the Company a non-exclusive, irrevocable, sub-licensable licence to use the Customer Data for the purpose of evaluating, testing, using, and improving the Company Solution provided that, to the extent that the Customer Data incorporates any personal data, the Company will appropriately anonymise such personal data in accordance with relevant data protection laws before any such use.

8.2. The Company owns or is licensed all rights, title and interests, including all Intellectual Property Rights in the Company Solution, including any upgrades or modified versions of the Company Solution, as well as any suggestion, idea, request for improvement, comment, recommendation or any other information provided by the Customer or any other party whether in the course of the Agreement or otherwise. The Customer shall have no rights in or to the Company Solution other than the right to use for the Term, in accordance with the terms of this Agreement. All rights that are not expressly granted remain reserved to the Company.

8.3. This Agreement does not involve a sale of any product and does not confer to the Customer any proprietary right to or in the Company Solution or any Intellectual Property Rights therein held by the Company and its licensors, or business partners.

8.4. Subject to clause ‎8.5, the Company shall defend and hold harmless the Customer against any claim that the possession or use of the Company Solution in accordance with the terms of this Agreement infringes Intellectual Property Rights of a third party (a Claim) and shall cover any reasonable losses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause ‎8.4 shall not apply where the Claim is attributable to possession or use of the Company Solution (or any part thereof) by the Customer other than in accordance with the terms of this Agreement, or as indicated by the Company, including in the event that the Company Solution is:

used in combination with any hardware or software not provided or recommended by the Company;
modified by anyone other than by the Company or under the Company’s supervision and instructions;
used in a manner contrary to the instructions given to the Customer by the Company; or
used by the Company following notice of alleged or actual infringement from the Company or any appropriate authority.

8.5. In the event a third party makes or notifies the Customer of its intention to make a Claim against the Customer, the Customer shall be deemed to have been given the Company sole authority to avoid, dispute, compromise or defend the Claim, and the Customer shall:

give prompt written notice of the Claim to the Company, specifying the nature of the Claim in reasonable detail;
not make any admission of liability, agreement or compromise in relation to the Claim without the prior consent of the Company; and
co-operate with the Company to the extent reasonably necessary for the Company to investigate the Claim.

8.6. If a Claim is made, or in the Company’s reasonable opinion is likely to be made against the Customer, the Company may at its sole discretion and expense:

procure for the Customer the right to continue to use the Company Solution (or any part thereof) in accordance with the terms of this Agreement;
modify or replace the Company Solution so that it ceases to be infringing; or
terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer pro rata as at the date of termination,

provided that if the Company modifies and replaces the Company Solution, it will comply with the warranties contained in this Agreement and the Customer shall have the same rights in respect thereof.

8.7. This clause ‎8 constitutes the Customer’s exclusive remedy and the Company’s only liability in respect of a Claim, and is subject to the exclusions and limitations of liability set out in clause ‎10.

9. Warranty

9.1. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this Agreement, and that those signing this Agreement are duly authorised to bind the party for whom they sign.

9.2. The Company warrants that:

- the Company Solution will conform in all material respects to the Specifications. In the event of a Defect, clauses ‎5.2 to ‎5.6 (and Schedule 1) shall apply; and

- it will provide support services set out in Schedule 1 in a reliable and professional manner, in conformity with Good Industry Practice.

9.3. The Company does not warrant that the use of the Company Solution will be uninterrupted or error-free.

9.4. The Company will not be 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.

9.5. Any unauthorised modifications or use of the Company Solution by, or on behalf of, the Customer shall render all the Company’s warranties and obligations under this Agreement null and void. For the avoidance of doubt, the Company shall not be obliged to rectify a particular Defect, nor shall it be bound by the time-frames set out in Schedule 1.

9.6. The Customer acknowledges that the Third Party Software may contain open source software which is provided “as is” and subject to the disclaimer in clause ‎9.7.

9.7. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties, or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

10. Limitation of Liability

10.1. To the extent permitted by applicable law and subject to clause ‎10.3, in no event will the Company be liable to the Customer for any indirect, special, incidental, consequential or exemplary damages arising out of or in connection with this Agreement, the Company Solution or the use or inability to use the Company Solution, including damages for loss of goodwill, work stoppage, lost actual or anticipated profits, loss of contracts, loss of anticipated savings, loss of revenue, loss of reputation or goodwill, loss of opportunity, loss of data, computer failure, or any other commercial damages or losses regardless of the legal or equitable theory (contract tort or otherwise) upon which the claim is based, and whether or not such losses were reasonably foreseeable.

10.2. Subject to clause ‎10.3 for all events and circumstances, the Company’s maximum aggregate and cumulative liability arising out of or relating to this Agreement will be limited to direct damages and will not exceed the greater of (i) the Fees paid in 12-month period immediately preceding the date on which the first event giving rise to liability occurred; or (ii) £20,000. Save that Company shall not be liable to Customer to the extent that liability would not have occurred but for the Customer’s breach of the Agreement or applicable law. In any event, nothing in this Agreement shall restrict or limit the Customer’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this Agreement.

10.3. Nothing in this Agreement is intended to exclude or limit Company’s liability for:

death or personal injury caused by the Company’s negligence;
fraud or fraudulent misrepresentation;
breach of the obligations implied by section 12 of the Sales of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
any other liability which may not be excluded by law.

10.4. All dates supplied by the Company for the integration of the Company Solution or provision of the support services shall be treated as approximate only. The Company shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates. Time is not of the essence of this Agreement.

10.5. If the Company’s performance of its obligations under this Agreement is prevented or delayed from (i) any act or omission of the Customer, its agents, subcontractors, consultants or employees; (ii) any failure by the Customer to meet any Customer Dependencies; or (iii) any Assumptions not being true (Customer Caused Delay); (i) the Company shall be relieved of its obligations under this Agreement is so far as they relate to the Customer Caused Delay; and (ii) the Company shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer Caused Delay.

11. Term and Termination

11.1. This Agreement shall commence on the Effective Date.

11.2. At the end of the Initial Term (or any subsequent Renewal Term), this Agreement will automatically renew for the Renewal Term unless either party provides written notice to the other, at least 60 days prior to the end of the Initial Term or the Renewal Term (as appropriate), of its intention not to renew the Agreement, in which case this Agreement will terminate at the end of such Initial Term or Renewal Term (as appropriate).

11.3. 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:

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 30 days after being notified in writing to make such payment;
the other party commits a material breach of any other terms of this Agreement and, where the breach is remediable, fails to remedy the breach within a period of 30 days after being notified in writing to do so;
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
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 the other party (being a company, limited liability partnership or partnership) 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; or
an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership).

11.4. Without affecting any other right or remedy available to it, the Company may terminate this Agreement with immediate effect by giving written notice to the Customer if:

the Customer is in breach of any Third Party Additional Terms and such breach, at the Company’s reasonable discretion, has a material impact on the Agreement;
the Customer fails to pay any amount due under this Agreement on the due date for payment and such amount remains unpaid 14 days after the Company providing notice to the Customer of such outstanding payment;
the Company’s shares are listed on a stock exchange;
the Company ceases to distribute or otherwise make available generally the Company Solution; or
the Customer undergoes a change of Control, or sells all or a significant part of its assets, or merges with a third party who is, in the Company’s reasonable opinion, a competitor of the Company.

11.5. On termination of this Agreement:

all rights granted under this Agreement, including the licence under clause ‎3 shall immediately cease;
the Customer shall cease all activities authorised by this Agreement and shall coordinate with and allow the Company to access the Customer Systems in order to remove the Company Solution from all Customer Systems;
the Customer shall immediately pay to the Company any sums due to the Company under this Agreement, whether invoiced or not;
the Customer shall allow access to the Customer Systems in order for the Company to remove the Company Solution from all Customer Systems;
each party shall immediately destroy or return to the other (at the other’s option) any and all Confidential Information it has in its possession, custody or control; and
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.

11.6. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement, including clauses ‎7 (Confidential Information), ‎8 (Intellectual Property Rights), ‎9 (No Warranty), ‎10 (Limitation of Liability), ‎11 (Termination), ‎12 (Data Protection), ‎25 (Governing Law and Jurisdiction) shall remain in full force and effect.

12. Bribery Act Compliance and Export Compliance

12.1. The Company shall:

comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including the Bribery Act 2010; and
promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Company in connection with the performance of this Agreement.

12.2. The Company shall ensure that any person associated with the Company (in accordance with the Bribery Act 2010) who is performing services in connection with this Agreement (including any subcontractor) does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on us in this clause ‎12.

12.3. Neither party shall export, directly or indirectly, any technical data acquired from the other party under this Agreement (or any products, including software, incorporating such data) in breach of any applicable laws or regulations (Export Control Laws) to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

12.4. Each party undertakes:

Contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
If requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

13. Data Protection

13.1. Each party shall act as a data controller of any personal data provided under this Agreement. Each party undertakes to comply with applicable data protection laws.

13.2. Each of the Customer and the Company acknowledge that the Company Solution is not designed to collect or process personal data, but tampering (whether unintentional or otherwise) with the Company Solution may cause personal data to be collected and processed. In the event that the Customer provides the Company with personal data of its customers and/or personnel, the Customer shall act as a data controller, and the Company as a data processor. In such event the Company will process such date in accordance with the DPA.

14. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15. 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.

16. Assignment

Neither party may assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of its obligations under it, without the other party’s prior written consent (such consent not to be unreasonably withheld or delayed).

17. Entire agreement

17.1. This Agreement (together with any documents referred to in it) constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

17.2. Each Party agrees that it 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. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.

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. Severance

19.1. 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.

19.2. If any provision or part-provision of this Agreement is deemed deleted under clause ‎19.1, 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.

20. Counterparts

This Agreement may be executed in any number of counterparts, each of which when executed and delivered (including via email) shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.

21. Third party rights

A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

22. No partnership or agency

22.1. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any part the agent of the other party, or authorise any part to make or enter into any commitments for or on behalf of any other party.

22.2. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

23. Force Majeure

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of time to perform such obligations. If the period of delay or non-performance continues for 30 days, the party not affected may terminate this Agreement by giving 30 days’ written notice to the affected party.

24. Notices

24.1. Notices under this Agreement will be in writing and sent to the person and address in clause ‎‎24.2. They may be given, and will be deemed received:

by hand: on delivery; and
by email: when the email is sent provided that no delivery failure notification is received.

24.2. The addresses for service of notice are:

Company: at the address at the front of this Agreement or help@edgify.ai; and
Customer: at the address at the front of this Agreement or the email address communicated by the Customer to the Company from time to time.

24.3. A party may change the address or email address to which such notices to it are to be delivered by giving not less than five Business Days’ notice to the other parties.

24.4. This clause does not apply to the service of any proceedings or other documents in any legal action.

25. Governing law and jurisdiction

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

25.2. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Scheudle 1 – Support Services Schedule

This Support Services Schedule covers the levels of service and support that will be provided by the Company to the Customer under the EULA.

1. Definitions

Customer Cause: any of the following causes:

any negligence, improper use, misuse or unauthorised alteration, or repair of the Company Solution (or any part thereof) by the Customer or a non-authorised third party;
any use of the Company Solution by the Customer in a manner inconsistent with the then-current documents;
the use by the Customer of any hardware or software not provided by the Company or approved by the Company in the Specifications for use by the Customer in connection with the Company Solution;
the use of newer versions of the Customer Systems not reviewed or accepted by the Company;
issues arising from the Customer’s network connections (e.g. bandwidth issues, excessive latency network outages), or caused by the internet, or failures due to power surge; or
the implementation of a non-current version or release of the Company Solution.

Non-supported Incident: incidents that are not supported by the Company and which constitute:

basic issues or request for information in relation to the Company Solution;
questions about usage, configuration or custom development support or non-bug related technical problems;
requests for enhancements of the Company Solution; or
any other requests which do not fall within the definition of Supported Incident.

Out-of-scope Services: any services provided by the Company in connection with any apparent problem regarding the Company Solution reasonably determined by the Company not to be a Supported Incident, but rather by an incident resulting from Customer Cause, a cause outside the Company’s control (including any investigative work resulting in such a determination), or a Non-supported Incident.

Resolution: either of the following outcomes:

a modification or addition that, when made or added to the Company Solution, corrects a Supported Incident; or
a workaround, procedure or routine which, when observed in the regular installation or operation of the Company Solution, eliminates the practical adverse effect of such Supported Incident, and
includes patches and bug fixes.

Service Levels: the service level responses and response times referred to in the Service Level Table.

Service Level Table: the table set out in Annex 1.

Supported Incident: failure of the Company Solution to materially operate in accordance with the Specifications resulting in the inability to use, or restriction in the use of, the Company Solution, including any operational failure or error referred to in the Service Level Table.

Support Hours: 9:00-18:00 during Business Days.

Support Period: the period which the Support Services shall be provided to the Customer, which unless otherwise set out in the Purchase Order, shall be the Term.

Support Request: has the meaning given to it in clause ‎6.1(a).

Support Services: maintenance of the then-current version or release of the Company Solution, but excluding any Out-of-scope Services.

Unless otherwise defined herein, all initial capitalised terms in this schedule shall have the meaning given to them in the EULA.

2. Level 1 Support Assessment Responsibilities

2.1. Level 1 Support shall be the initial assessment stage of any technical issue reported by the Customer or identified by the Customer Project Manager. During this stage, the Customer Project Manager is responsible for determining whether the issue in question is related to hardware, network, or the Company Solution.

2.2. Prior to escalating the issue to the Company through the opening of a support ticket, the Customer Project Manager shall conduct a preliminary investigation to establish the category of the issue. This investigation shall include, but not be limited to:

hardware assessment: verifying the physical integrity and functional capabilities of all relevant hardware components.
network assessment: ensuring connectivity, bandwidth, and the proper functioning of network equipment and configurations.
Company Solution assessment: checking for any issues related to the Company Solution, including updates, system errors, or configuration problems.

2.3. If the issue is determined to be within the hardware or network domain, the Customer Project Manager shall take appropriate measures to resolve the problem within their capacity before involving the Company. If the problem is beyond the scope of Level 1 Support or is identified as related to the Company Solution, a support ticket may be opened with the Company for further assistance.

2.4. The Customer shall comply with the process for escalating issues to the Company set out below. The Customer Project Manager must provide a detailed account of the findings from the Level 1 Support assessment when opening a ticket to facilitate prompt and effective resolution by the Company.

2.5. The Customer acknowledges that failure to conduct a Level 1 Support assessment as detailed herein may result in delays in problem resolution and may incur additional support costs as set forth in the Service Services Schedule.

3. Support Services

3.1. During the Support Period, the Company shall perform the Support Services during the Support Hours in accordance with the Service Levels and other provisions of the EULA, as applicable.

3.2. As part of the Support Services, the Company (or a third party nominated by the Company) shall:

provide support by means of the following email address help@edgify.ai.
commit appropriate resources to the provision the Support Services;
use commercially reasonable efforts to correct all Supported Incidents notified under ‎6.1 and
provide technical support for the Company Solution in accordance with the Service Levels.

3.3. The Customer acknowledges that the Company is not obliged to provide Out-of-scope Services, and the Company may request an extra fee for doing so, such fee to be agreed as a condition to the provision of the Out of Scope Services.

4. Fees

The provision of Support Services at the Customer Premises, or other Customer premises, or the provision of Out-of-scope Services is not included in the Fees and will be charged at a fee to be agreed between the parties (including by email).

5. Support, Maintenance and Additional Services

5.1. The Company shall provide bug fixes, corrections, modifications and enhancements to the Company Solution to ensure:

the functionality of the Company Solution and its availability to the Customer;
the functionality of the Company Solution in accordance with the terms of the EULA; and
the Company Solution operates within the Specifications.

5.2. The Company shall provide no less than 3 days prior written notice to the Customer of all non-emergency maintenance to be performed on the Company Solution. The Company will try to avoid scheduling downtime during the Customer’s normal working hours.

5.3. Should the Customer require Support Services, it shall promptly notify the Company (or the nominated third party) in accordance with clause ‎6.1.

6. Supported Incidents

6.1. The Customer shall on becoming aware of a Supported Incident:

promptly notify the Company in writing (Support Request); and
where the Customer believes the Supported Incident may materially impact its systems, the Customer shall immediately disable or disconnect (as appropriate) the Company Solution from the Customer System to which the Supported Incident relates.

6.2. Each Support Request shall include:

a description of the Supported Incident;
the start time of the Supported Incident; and
the actions taken by the Customer to mitigate any loss likely to result due to the Supported Incident.

6.3. The Customer shall provide the Company with such output and other data, documents, information, assistance and access to the Customer System, as are reasonably necessary to assist the Company to respond to the Support Request.

6.4. The Company shall not be bound by the Service Levels, which are targets for response to, and resolution of, issues caused by the Customer, and the Customer acknowledges that each issue is independent such that different response and resolution times will apply to each issue arising.

6.5. The Company shall not be responsible or liable for, and the Customer shall not be entitled to terminate Agreement where, an issue initially designed as a Supported Incident is in fact categorised as a Non-supported Incident, or where such Supported Incident arises as a result of a Customer Cause.

7. Service Levels

7.1. The Company shall use reasonable endeavours to:

prioritise all Support Requests based on its reasonable assessment of the severity level of the Supported Incident reported; and
respond to all Support Requests in accordance with the responses and response times specified in the table set out in Annex 1.

7.2. The parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response times.

7.3. Company shall give the Customer regular updates of the nature and status of its efforts to correct any Supported Incidents.