Apto Solutions Limited General Terms and Conditions

1. ENGAGEMENT AND TERM

1.1 The Customer shall engage the Supplier and the Supplier shall act for the Customer in a capacity as set out in any SOW to this Agreement.

1.2 The Parties agree that this Agreement exists to set out the legal terms and conditions which are intended to apply to all SOW’s agreed between the Parties.  Consequently it shall commence on the Effective Date and terminate on one party giving a minimum of 90 days written notice to terminate.  If any notice of termination conflicts with a current SOW, the actual date of termination shall be the later of the date contained in the termination notice or the date that anything provided under the final current SOW is concluded.

1.3 Nothing in this Agreement obligates the Customer to enter any future SOW’s with the Supplier or use the Suppliers Services on an exclusive basis.

2. SERVICES AND OBLIGATIONS

2.1The services to be provided by the Supplier shall be set out in a SOW.

3. RATES

3.1 All services shall be provided at the rates set out in the Suppliers Rate Card from time to time in force and which shall me made available to the Customer on request.  However, where different, any Fees set out in a SOW shall prevail over the Fees set out in the Suppliers Rate Card.

4. CHARGES AND PAYMENT

4.1  All amounts payable by the Customer exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate.

4.2  The Supplier shall submit invoices plus VAT to the Customer either monthly in arrears or at such intervals for payment as are described in the relevant SOW. Each invoice shall include supporting information reasonably requested by the Customer.

4.3  The Customer shall pay each invoice due and submitted to it by the Supplier, within 30 days of receipt, to a bank account nominated in writing by the Supplier.

4.4  If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then, without limiting any of the Supplier’s other remedies (including Termination):

(a)  the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 2.5% a year above the Bank of England’s base rate from time to time.

(b)  the Supplier may suspend all Services until payment has been made in full.

4.5  All amounts due under the Agreement from the Customer to the Supplier shall be paid by in full without any set-off, counterclaim, deduction or withholding.

5. TERMINATION FOR DEFAULT

5.1  Either party may terminate this Agreement at any time on written notice to the other party upon one or more of the following:

(a) if either party is in persistent or material breach of any of the terms of this Agreement or any relevant SOW and either that breach is incapable of remedy, or the party fails to remedy that breach within 28 days after receiving written notice requiring it to remedy that breach, the other party may terminate the Agreement immediately without prior notice; or

(b) if either party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution (otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is subject to any analogous event or proceeding in any applicable jurisdiction; or

(c) if either party ceases or threatens to cease to carry on business; or

(d) if there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010.

(e)  if either party is convicted of any offence involving any act of bribery or corruption or modern slavery; or

5.2  The proper exercise by either party of their right under this Clause shall be without prejudice to any of their other rights or remedies under this Agreement.

6. CUSTOMERS OBLIGATIONS

6.1  To the extent that it is needed for performance of the Services the Customer shall:

(a)  co-operate with the Supplier in all matters relating to the Services;

(b)  provide, for the Supplier, its agents, subcontractors, consultants, and employees, in a timely manner and at no charge, access to the Customer’s premises, office accommodation, data and other facilities as reasonably required by the Supplier.

(c)  provide, in a timely manner, such information as the Supplier may reasonably require, and ensure that it is accurate and complete in all material respects; and

6.2  If the Supplier’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Supplier shall:

(a)  not be liable for any costs, charges or losses sustained or incurred by the Customer that arise directly or indirectly from such prevention or delay;

(b)  be entitled to payment of the Charges despite any such prevention or delay; and

(c)  be entitled to recover any additional costs, charges, or losses the Supplier sustains or incurs that arise directly or indirectly from such prevention or delay.

7. CUSTOMER USE OF SECURED RESOURCE

7.1  The Customer acknowledges that agrees that the Supplier must efficiently and effectively plan its resource in order to service the entirety of its customers.  Failure by the Customer to schedule use of the Secured Resource in a timely manner will have a material impact on the Suppliers profitability and in the time that the Secured Resource remains unused the Supplier may face increases in terms of labour rates and other costs.  In the context the Customer agrees that if the Secured Resource remains unscheduled for a period of 180 days the relevant SOW to the Secured Resource may be terminated immediately on written notice by the Supplier and the Customer shall pay the sums stated in the SOW.

8. CANCELLATION CHARGES

8.1  Where the Customer cancels any SOW (including without limitation SOWs for Configuration and Development and any SOW’s where the Customer is charged on a time and materials basis) the Customer shall pay the Supplier a cancellation fee calculated in accordance with the following table:

9. DATA PRIVACY AND DATA PROTECTION

9.1  When acting as a processor the Supplier  will  only  process  Customer Personal  Data  in  accordance  with  the  reasonable  written  instructions  of  Customer, unless required otherwise by  applicable law, lawful government authority, or  applicable court, and in such case the Supplier will notify Customer in advance (unless  prohibited by law from doing so).

9.2  When acting as a processor In  accordance  with  then-current  good  industry  practice,  the Supplier will  implement  appropriate  technical  and  organizational security  measures  to  protect  Customer  Personal  Data  against  unauthorized  or  unlawful  Processing  and  against accidental loss or destruction, or damage, appropriate to the harm that might result from the foregoing and the nature of the  Services and price paid for the Services and considering  the  state  of  technological  development  and  the  cost  of implementing any such measures.

9.3 The Supplier will  assist  Customer  in  responding  to reasonable  requests  from  Data  Subjects  for  the  exercise  of  their  rights under  the  Data  Protection  Legislation  in  respect  of  Customer  Personal  Data.

9.4.  The Supplier  will  assist  Customer,  at  Customer’s  cost,  with  Customer’s  compliance  with  its  obligations  under  the  Data Protection  Legislation  with  respect  to  security,  breach  notifications,  impact  assessments,  and  consultations  with supervisory  authorities   or   regulators,  upon   Customer’s  written   request,  insofar   as   is   possible,   reasonable,   and proportionate.

9.5  When the Supplier is sub processing the Customer hereby  grants its  consent to  the Processing of Customer Personal Data by Affiliates and/or subcontractors of the Supplier engaged  in  the  performance  of  the  Agreement  (the  “Sub-processors”). The Supplier is responsible  for  the  sub-processing  and  performance of  its  Sub-processors  in  accordance  with  the  requirements  of  the Data  Protection  Legislation  and  will  ensure  that  such  sub-processing  will  be  on  terms  substantially  equivalent  to  this Clause.  Details of any sub-processors will be made available on written request.

9.6 The Supplier will require that its employees, Sub-processors, and each of their employees will  keep Customer Personal Data confidential.

9.7  Where relevant, if the Supplier transfers Customer Personal Data outside the EEA or to a country without an adequacy decision from the EU  Commission,  it will  provide  appropriate  safeguards  by  using  the  standard  contractual  clauses  for  transfer  of Personal Data to Processors established in third countries approved by the European Commission (the “SCC”) or another appropriate safeguard. Customer authorizes the Supplier or its Affiliates to enter the SCC on behalf of Customer and its Affiliates.

9.8  The Supplier will on  thirty  (30)  days  prior  written  notice  from  Customer,  provide  to  Customer  reasonably  and  readily  available information to demonstrate its compliance with these Data Protection Clauses.

9.9  The Supplier will  notify  Customer  without  undue  delay  when  it  becomes  aware  of  a  Personal  Data  Breach of  Customer Personal Data.

9.10  At Customer’s request upon the expiration or termination of the Agreement, the Supplier will delete or return to Customer all the  documents  and  files  containing  Customer  Personal  Data  after  the  end  of  the  provision  of  Services  relating  to Processing and will not retain any copy of the Customer Personal Data, unless required to do so by applicable law.

10. INTELLECTUAL PROPERTY

10.1  Subject to clause 10.2, all Intellectual Property Rights created as a result of the provision by the Supplier of the Services shall be owned by the Supplier.

10.2  Conditional upon receipt by the Supplier of payment from the Customer for Services in full  and with effect from the date of receipt of such payment, the Supplier will assign to the Customer all Intellectual Property Rights (not including Intellectual Property Rights in any Pre-existing Materials of the Supplier or any third party) created as a result of the provision of the Services to which the payment relates (the “Assignment”).

10.3 Prior to the date of Assignment, the Supplier shall license all Intellectual Property Rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services as is envisaged by the parties.  If the Supplier terminates the Agreement or any SOW, this licence will automatically terminate.

10.4The Customer acknowledges that the Customer’s use of rights in Pre-existing Materials is conditional on the Supplier obtaining a written end-user licence (or sub-licence) of such rights from the relevant licensor or licensors on such terms as will entitle the Supplier to license such rights to the Customer.

10.5  The Customer grants the Supplier a fully paid-up, worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the IPR owned or licensed by the Customer for the term of the Agreement for the purpose of the Supplier providing the Services to the Customer in accordance with the Agreement and any relevant SOW.

10.6 Nothing in this Agreement is intended to transfer ownership of any IPR in Pre-existing Materials.

10.7  The Supplier shall indemnify the Customer in full against any sums awarded by a court against the Customer arising out of or in connection with any claim brought against the Customer for infringement of a third party’s intellectual property rights (including any Intellectual Property Rights) which is caused directly as a result of receipt or use of the Services by the Customer.

10.8  The Customer shall indemnify the Supplier in full against any sums awarded by a court against the Supplier arising out of or in connection with any claim brought against the Supplier for infringement of a third party’s rights resulting from the Customers use of the Services (including in conjunction with anything not provided by the Supplier)  or use of the Customer Materials by the Supplier

11. CONFIDENTIALITY

11.1  Each party undertakes that it shall not at any time during the Agreement, and for a period of two years after termination of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by another section of this clause.  For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.

11.2  Each party may disclose the other party’s confidential information:

(i)  to its employees, officers, representatives, contractors, subcontractors, or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors, or advisers to whom it discloses the other party’s confidential information comply with this clause; and

(ii)  as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3  Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Agreement.

12. LIMITATION OF LIABILITY

12.1  Nothing in this clause 8 shall limit the Customer’s payment obligations under the Agreement.

12.2  Nothing in the Agreement limits any liability which cannot legally be limited, including liability for:

(a)  death or personal injury caused by negligence;

(b)  fraud or fraudulent misrepresentation.

12.3  Subject to clauses 12.1 and 12.2 the Supplier’s total liability to the Customer for all other losses of whatever description or category shall not exceed 120% of the fees paid by the Customer in the 12 month period under the SOW under which the cause of the claim arose.  The following types of loss  are wholly excluded:

(a)  loss of profits;

(b)  loss of sales or business;

(c)  loss of agreements or contracts;

(d)  loss of anticipated savings;

(e)  loss of use or corruption of software, data or information;

(f)  loss of or damage to goodwill; and

(g)  indirect or consequential loss.

13. STATEMENTS AND MARKETING

13.1  Neither party shall make any statement or press-release relating to the existence of this Agreement without the written consent of the other.

14. GENERAL

14.1  The Supplier shall have no liability to the Customer under the Agreement if it is prevented from, or delayed in, performing its obligations under the Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, , fire, flood, storm.

14.2  A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.

14.3  Unless specifically provided otherwise, rights arising under the Agreement are cumulative and do not exclude rights provided by law.

14.4  If any provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

14.5  Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement or SOW other than as expressly set out in the Agreement or SOW.

14.6  The Customer shall not, without the prior written consent of the Supplier not to be unreasonably withheld, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Agreement. The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under the Agreement.

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

14.8 The Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.

14.9  With the exception of any terms and conditions set out in a SOW, these conditions shall apply to and be incorporated in the Agreement and prevail over any inconsistent terms or conditions contained in, or referred to in, any Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice, or course of dealing.

14.10  Any variation of the Agreement must be in writing and signed by or on behalf of the parties.

14.11  Any notice under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address as set out in the Agreement, or such other address as may have been notified by that party for such purposes.   A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.

14.12  The Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

15. DEFINITIONS

Agreement – Means this framework agreement together with any SOW

Customer Personal Data – Means any personal data relating to a data subject engaged by the Customer, or an personal data relating to any of the Customer customers

Data Protection Legislation – All applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended

Effective Date – Means the Effective Date stated in Section A or if no date is stated in Section A the date of the last signature in Section B

Intellectual Property Rights or IPR – Patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world

Pre-Existing Materials – Materials which existed before the commencement of the Services

Rate Card – Means the Suppliers standard charging rates for various persons or roles that may provide services to its customers

Secured Resource – Has the meaning given in any relevant SOW or where it is not defined in a SOW it means the professional services that were anticipated to be bought by the Customer, the fees for which to be charged at the Suppliers current Rate Card

Services – Means any services which the Supplier agrees to provide under a SOW

SOW – Means any document which is intended to be a statement of work in accordance with this Agreement.

VAT – Value added tax chargeable under English law for the time being and any similar additional tax.