4. PROVISION of the Services

4.1 Supplier shall perform the Services with reasonable skill and care, in accordance with applicable Law, using suitably experienced and qualified Supplier Personnel and in accordance with any service levels and acceptance criteria set out in the Order Form.

4.2 Supplier shall report monthly on actual performance of the Services.

4.3 The Services may be used by or on behalf of Customer Group Members) for their business purposes and as otherwise specified in the Order Form. Customer shall ensure that the Customer Group Members comply with Customer’s obligations under this Agreement in relation to their receiving the Services. Supplier does not have an exclusive right to provide the Services for the Customer Group Members.

4.4 Supplier shall obtain the approvals, consents, and licences necessary to perform the Services. Supplier shall provide the sys tems, facilities and materials needed to perform the Services.

4.5 Supplier shall provide the Services from the Locations and keep and process Confidential Information and Personal Data in the UK and EEA, unless otherwise approved in writing by Customer.

4.6 Supplier shall promptly notify Customer of an actual or likely failure of Supplier to perform the Services in accordance with this Agreement or otherwise comply with this Agreement.

5. SUPPLIER PERSONNEL

5.1 Supplier will be responsible for the Supplier Personnel. Supplier will ensure that it conducts suitable background checks on all Supplier Personnel and that the Supplier Personnel are legally entitled to reside and work at the Locations and provide the Services.

5.2 Customer may reasonably require that Supplier replace individuals performing the Services or that they may not access Customer premises.

5.3 Customer shall not during the Term and for 12 months thereafter solicit, engage or employ any Supplier Personnel without the prior written consent of Supplier.

5.4 Supplier will indemnify Customer for any liability and associated reasonable legal costs arising from any claim by any Supplier Personnel relating to that individual’s employment or relationship, including any deemed transfer of the employment or relationship to the Customer and any subsequent termination by Customer of that employment or relationship.

5.5 Supplier shall indemnify Customer if Customer is held liable by any Regulator for any income tax, employer and employee National Insurance contributions, apprenticeship levy or any other liability, deduction, contribution, assessment or claim relating to Supplier Personnel.

6. WARRANTIES

6.1 Supplier warrants that:

a) it has the capacity and authority to enter into and perform its obligations under this Agreement;

b) there are no actions, proceedings or investigations pending or, to its knowledge, threatened against Supplier by or before any court, administrative body, arbitration tribunal or Regulator; and

c) the Services are provided as is and all implied warranties including merchantability and fitness for purpose are hereby excluded.

7. CHARGES and PAYMENT

7.1 shall pay undisputed invoices within 30 days of the invoice date. Supplier shall provide Customer with reasonable supporting information for invoices, if requested.

7.2 The Charges are stated exclusive of any applicable VAT or local sales taxes.

7.3 Supplier may charge an administration fee and interest on undisputed late payments at the rate of 3 per cent per annum above the published Bank of England base rate from time to time, from the due date until payment is received by Supplier.

8. CONFIDENTIAL INFORMATION

8.1 The parties shall each:
a) keep confidential in perpetuity;

9.

b) only use for the purposes of this Agreement and confirming compliance with laws; and

c) only disclose in confidence to the recipient’s employees, contractors and advisors who need to know and are under an equivalent duty of confidentiality, the other party’s Confidential Information, unless the Confidential Information:

i) is public knowledge otherwise than in breach of this clause,
ii) can reasonably be shown to have been known by the recipient before being received from the discloser,
iii) is received from a third party that had not breached a duty of confidentiality,
iv) is developed independently by the recipient, or
v) is required to be disclosed by law or a Regulator (provided that the disclosing party is promptly notified to the extent permitted by law).

COMPLIANCE

9.1 The parties shall comply with Laws in relation to this Agreement and shall not do anything which it knows, or ought to know, would cause the other party to breach Laws.

9.2 To the extent permitted by law, Supplier shall promptly notify Customer of any communications with a Regulator that relates to Customer complying with Laws.

9.3 Supplier shall cooperate with Regulators and their representatives and provide any assistance requested by a Regulator.

9.4 Supplier shall maintain and follow reasonable policies and procedures to ensure compliance with Laws, including in relation to anti-bribery and corruption, anti-tax evasion, forced labour, sustainability and data protection.

10. DATA PROTECTION

10.1 Both parties will comply with applicable Data Protection Legislation. The subject-matter of the processing activities under this Agreement is limited to Personal Data disclosed by Customer. The duration of the relevant processing shall be for the duration of this Agreement. The nature and purpose of the processing shall be to provide and receive the Services.

10.2 Supplier will process any Personal Data as a separate and independent Controller.
10.3 Supplier shall when processing Personal Data (and shall ensure any of its approved subcontractors shall):

a) only process Personal Data as strictly necessary for the performance of this Agreement;

b) not transfer Personal Data to, or process it in any jurisdiction outside the UK or EEA without the consent of Customer;

c) provide upon request an accurate, up-to-date written record of processing activities carried out in respect of Personal Data;

d) implement adequate security, technical and organisational measures to protect Personal Data from unauthorised disclosure, destruction, loss or alteration;

e) promptly, and in any event within 72 hours, notify Customer in writing of any actual or potential Personal Data breach; f) provide co-operation and assistance to Client in ensuring its compliance with Data Protection Legislation; and
g) promptly notify Customer in writing if it receives any data access requests from a Data Subject.

10.4 Customer will provide Supplier with information it receives from Data Subjects and other information necessary for Supplier to comply with its obligations under Data Protection Legislation.

11. INFORMATION SECURITY

11.1 Supplier shall:
a) comply with the ISO/IEC 27001; and
b) promptly notify Customer of any unauthorised access or other security incidents involving Customer information.

12. INTELLECTUAL PROPERTY

12.1 Nothing in this Agreement will transfer ownership in Customer IPR or Supplier IPR. Ownership of the Deliverables will vest with Customer. Customer has no right to reverse engineer or copy any Supplier IPR.

12.2 Customer grants Supplier a non-exclusive, royalty-free and non-sublicensable (other than to approved subcontractors), to use the Customer IPR during the Term only as necessary to provide the Services.

12.3 Upon payment of the Charges and subject to the Service Specific Terms, the Supplier assigns the Intellectual Property Rights in the Deliverables to the Customer to use solely for the Customer’s business purposes.

12.4 Supplier shall defend the Customer Group Members against any third-party claim that the receipt or use of the Services or any Deliverables infringes any Intellectual Property Rights and indemnify the Customer Group Members against any damages awarded or settlement paid together with reasonable legal costs. If a claim is threatened, Supplier shall use reasonable efforts to secure the necessary rights for continued use of the relevant item or modify or replace the item to avoid infringement without degrading the Services. This indemnity will not apply if Customer has modified the Deliverables or used them in conjunction with material not authorised by Supplier.

13. LIABILITIES

13.1 Nothing in this Agreement limits or excludes the liability of either party: (a) for death or personal injury arising out of its negligence, fraud or fraudulent misrepresentation, or any other liability for which it is not permitted by law to exclude or limit, or (b) under clauses 8 (Confidential Information) and 12.4 (Intellectual Property Indemnity).

13.2 Subject to clause 13.1, neither party shall have any liability for indirect or consequential losses including loss of profits, revenue, business, opportunity, or data. The total liability of each party under this Agreement shall be limited to the total Charges paid or payable under the applicable Order Form giving rise to the party’s liability, however the losses arise in connection with this Agreement, including in contract, breach of statutory duty, tort (including negligence).

13.3 The parties agree that Supplier has no liability for the use or misuse of any Deliverable provided by Supplier.

13.4 Supplier shall maintain adequate insurance policies in respect of Supplier’s potential liabilities under this Agreement and promptly provide evidence of such policies at Customer’s request.

14. AUDIT

14.1 Supplier shall, upon written request and reasonable prior notice (and not more than once in any 12-month period, unless required by law or a Regulator) allow Customer and its auditors to audit Supplier’s compliance with this Agreement.

15. TERM AND TERMINATION

15.1 This Agreement shall commence on the Start Date and continue for the Term unless terminated earlier in accordance with its terms. 15.2 Either party may terminate this Agreement immediately on written notice if the other party:

a) commits any material or persistent breach of this Agreement, which is either incapable of remedy or is not remedied within 30 days’ written notice; or

b) becomes insolvent or takes any action in connection with an arrangement with its creditors (other than in relation to a solvent restructuring), ceases to carry on business or any analogous procedure.

15.3 Supplier shall perform exit assistance reasonably requested by Customer and this shall involve the transfer of Customer data and information to Customer or another supplier.

15.4 Termination of this Agreement shall not affect any accrued rights.

16. GENERAL
16.1 Assignment Except for assignment to Group Companies, neither party may assign or transfer any rights or obligations under this Agreement

without the prior written consent of the other party.

16.2 Force Majeure. Neither party shall be liable for failures or delays caused by circumstances beyond its reasonable control, if it has taken reasonable precautions in advance, promptly notifies the other party of the delay and uses reasonable efforts to promptly res ume performance.

16.3 Changes. This Agreement may only be changed by the parties in writing, signed by their authorised representatives.
16.4 Notices. Notices shall be in writing, sent to the address set out in the Order Form.
16.5 Cumulative Remedies. Remedies under this Agreement are cumulative and not exclusive of other remedies under this Agreement or by law.

16.6 Waiver. A party’s delay or failure to enforce a term of this Agreement will not waive the party’s right to enforce that or any other term. A waiver of any right, remedy, breach or default will only be valid if given in writing by an authorized representative of a party and will not constitute a waiver of any other right, remedy, breach or default.

16.7 Severability. If any provision of this Agreement is or becomes invalid, illegal or unenforceable it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. Where no modification is possible, the provision shall be deemed deleted without effect on the rest of this Agreement.

16.8 Independent Contractors. The parties are independent contractors, and this Agreement does not create an agency, partnership, or joint venture relationship. Neither party shall make commitments on the other party’s behalf.

16.9 Entire Agreement. This Agreement comprises the entire agreement between the parties and supersedes any prior agreement between them relating to its subject matter.

16.10 Third Party Beneficiaries. There are no other third-party beneficiaries under this Agreement.

16.11 Law and Jurisdiction. This Agreement and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the Englis h courts.

Schedule 1

Service Specific Terms – Software as a Service

1. DEFINITIONS

Administrator: a person appointed by Customer to manage the subscriptions of Authorised Users. Authorised User: Customer personnel authorised to access the SaaS Services.

Champion: an individual appointed by Customer who has completed Supplier’s training on the SaaS Services and who has access to all the profiles of Authorised Users.

Data Format: a commercially reasonable, readily available, industry standard and comprehensible electronic format or as may be agreed between the parties.

Documentation: user or operating manuals relating to the SaaS Services giving comprehensible information sufficient for a reasonably competent user to access and use all of the functions of the SaaS Services.

SaaS Services: the subscription based solution to be provided under this Agreement relating to Supplier’s Spotlight online personality profiling tool, including (a) any computer hardware, consumables, operating systems, firmware, telecommunications, networking, routing, cabling, power supplies, electrical or other infrastructure equipment that is used as a platform to host the solution by Supplier’s hosting services provider, (b) all computer software and programs developed and/or used by Supplier or any Supplier Personnel in providing the solution which are deployed on the equipment referred to in (a) above and/or are accessed and used (directly or indirectly) as part of the solution, (c) all equipment and storage media used for housing, serving, and maintaining HSBC Information and (d) the information or data accessible on or through such solution.

Service Output: any Deliverable such as user profiles generated by or as a result of the SaaS Services or is produced for Customer by or on behalf of Supplier under this Agreement.

Update: any additional or amended software or other material (including a patch or fix) which corrects bugs or errors in the SaaS Services and any other update, amendment, upgrade or enhancement to the SaaS Services that is generally made available to Supplier's customers.

2. RIGHTS AND USAGE

2.1 Unless otherwise set out in the Order Form, the Supplier grants to Customer a non-exclusive, worldwide, irrevocable licence to:

a) Use the SaaS Services in accordance with this Agreement during the Term;
b) Use the Service Outputs in accordance with this Agreement on a perpetual basis; and
c) Use the Documentation during the Term,
provided that Customer may not use Service Outputs to create its own version of the SaaS Services or enable a third party to do so.

2.2 Customer shall not be permitted to copy, reverse engineer or duplicate the platform or use the SaaS Services to provide services to third parties.

3. CUSTOMER OBLIGATIONS

3.1 Customer shall ensure its appointed Champion attends the training provided by Supplier. Customer will also appoint an Administrator to manage its account.

3.2 Customer shall procure that each Authorised User consents to the terms of use and acceptable use policy on the platform.

3.3 Customer shall ensure that it does not exceed the maximum number of Authorised Users set out in the Order Form and will ensure that the churn rate of replacing Authorised User accounts with new accounts does not exceed the percentage set out in the Ord er Form.

3.4 Customer shall ensure that no unauthorised content is loaded onto the platform or that the SaaS Services are used for illegal or defamatory purposes. Customer is at all times responsible for the acts and omissions of Authorised Users and will indemnify Supplier against any third-party claims relating to the content uploaded onto the platform.

4. SUPPLIER OBLIGATIONS

4.1 Supplier shall:

a) provide the SaaS Services, Service Outputs and Documentation in a manner accessible from Customer’s network connection;

b) provide Service Outputs in the agreed Data Format;

c) supply Authorised Users with login details, passwords and such other information reasonably required for access and use of the SaaS Services and the Use of the Documentation and Service Outputs;

d) provide training as specified in the Order Form;

e) provide support and maintenance for the SaaS Services and use commercially reasonable efforts to keep them available 24/7 except for scheduled maintenance;

f) monitor performance of the SaaS Services and inform Customer of any performance issues;
g) have Supplier personnel available to respond to Customer technical issues sent to support@mindflick.co.uk; and

h) use commercially reasonable efforts to resolve any performance issues and installing Updates where necessary.

5. WARRANTIES

5.1 Supplier warrants that the SaaS Services shall operate substantially in accordance with the Documentation and that Supplier has the required licences and consents to provide the SaaS Services.

5.2 Supplier warrants that the SaaS Services will be provided in accordance with Supplier’s security policies and procedures.

Schedule 2

Service Specific Terms – Consultancy Services

1. PERSONNEL

1.1 Unless otherwise specified in the Order Form, Supplier Personnel will work remotely and will not have access to Customer premises or systems.

1.2 Supplier will decide which Supplier Personnel to use.

1.3 All time and material charging under an Order Form will be based on Supplier Personnel working an 8 hour day.

2. OBLIGATIONS

2.1 Each party will cooperate with the other and provide information and assistance that is reasonably required for the performance and receipt of the Services.

2.2 Customer will ensure that it signs off Deliverables and performs any applicable acceptance testing promptly and in accordance with any process set out in the Order Form.

2.3 Supplier will promptly inform Customer about any anticipated delays or where actions of Customer or third parties have delayed the Services.