End User MSA

Ignite General Terms

For the Provision of Services to End Users

These General Terms form part of each Statement of Work to be entered into by (1) Ignite Technology Limited (company number 04471011) whose registered office is at 22-26 King Street, King’s Lynn, Norfolk PE30 1HJ or any of its Affiliates (the Supplier) and (2) a customer (the Customer) (each of the Supplier and the Customer being a party and together, the Supplier and the Customer are the parties).

1. Definitions and interpretation

1.1. In these General Terms, the following terms have the following meanings:

1.2. In these General Terms, unless otherwise specified, a reference to:

• 1.2.1. the singular includes the plural and vice versa and any gender includes the others;
• 1.2.2. a person includes a natural person, company or unincorporated body (whether or not having separate legal personality);
• 1.2.3. a clause is to a clause of these General Terms;
• 1.2.4. a Contract or any other agreement or document referred to in these General Terms is a reference to such Contract or such other document or agreement as varied or novated (in each case, other than in breach of the provisions of these General Terms) from time to time;
• 1.2.5. applicable law or legislation are to that applicable law or legislation as amended, extended re-enacted or consolidated from time to time;
• 1.2.6. a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
• 1.2.7. including, include, in particular or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms;
• 1.2.8. a party shall include references to its successors in title and permitted assigns;
• 1.2.9. writing or written includes email but not fax, SMS, WhatsApp or any other social media; and
• 1.2.10. days, months or years is to calendar days, months or years.

1.3. Headings are for convenience only and shall not affect the interpretation of these General Terms.

1.4. If there is a conflict or inconsistency between sections of these General Terms and a Statement of Work, they shall be applied in the following order of precedence:

• 1.4.1. first, the Statement of Work; and
• 1.4.2. secondly, these General Terms.

2. Duration

These General Terms apply to the Services the subject of any Contract for the duration set out in the Statement of Work relevant to the Services.

3. Services

3.1. The Supplier shall provide the Services for the Term in accordance with the terms of the Statement of Work and these General Terms.

3.2. The Services to be provided may be subject to separate written Statements of Work which shall be agreed by the parties. Each such separate Statements of Work shall be performed in accordance with the terms as set out in the relevant Statement of Work and in accordance with these General Terms.

4. Supplier warranties

4.1. The Supplier warrants that:

• 4.1.1. the Supplier has the right, power and authority to enter into each Contract, to grant to the Customer the rights contemplated in each Contract and to supply the Services;
• 4.1.2. the Services will be performed with reasonable skill and care in accordance with good industry practice;
• 4.1.3. the Services will be performed in accordance with any specific timetable set out in the Statement of Work or in the absence of such timetable as soon as reasonably practicable; and
• 4.1.4. the Services will meet any specific requirements set out in the Statement of Work.

4.2. In the event that the Supplier fails to perform the Services in accordance with the terms of the Contract, its sole liability and the Customer’s sole remedy shall be for the Supplier to reperform the Services as soon as reasonably possible so that they are in accordance with the terms of the Contract.

4.3. Save as set out above or as set out in any Statement of Work, the Supplier does not give any other warranty in respect of the Services and all implied warranties are hereby expressly excluded.

5. Customer Responsibilities

5.1. The Customer shall procure for the Supplier access to the Customer’s premises, systems, data and personnel in each case as is reasonably necessary for the Supplier to perform its obligations under the Contract. The Customer shall give to the Supplier such assistance as the Supplier may reasonably require (at no additional cost to the Supplier) to enable the Supplier to perform the Services.

5.2. The Services are provided at the Customer’s request and the Customer is responsible for ascertaining that the Services are suitable for its own needs.

5.3. The Customer shall only use the Services for its own benefit and not for the benefit of any third party.

6. Supplier Relief

The Supplier shall not be liable for any failure to perform its obligations under the Contract to the extent that the Supplier is prevented from performing its obligations under the Contract as a result of any act of omission by the Customer or the failure of the Customer to provide the Supplier with its reasonable support or due to an event of Force Majeure.

7. Fees

7.1. The Customer shall pay the Fees due to the Supplier as set out in the Statement of Work.

7.2. All prices are exclusive of value added tax (if any) or any other locally applicable equivalent sales taxes, which is payable by the Customer at the rate and in the manner from time to time prescribed by law.

7.3. Fees are as set out in the Statement of Work. Where the Statement of Work specifies any increase in Fees, the Fees shall increase automatically in accordance with such terms.

7.4. Unless otherwise provided in a Statement of Work, in respect of items that may be the subject of a Statement of Work, fees shall be due as follows:

• 7.4.1. Fees for the provision of support services shall be payable monthly in advance; and
• 7.4.2. Fees for other services shall be paid monthly in arrears.

8. Invoicing and payment

8.1. The Supplier shall invoice the Customer for all sums due in accordance with any Statement of Work.

8.2. The Customer shall pay all invoices within 30 days of receipt or as otherwise set out in any Statement of Work. If the Customer fails to make payment in accordance with these General Terms or any Statement of Work the Supplier shall be entitled, in addition to any unpaid amount that should properly have been paid, to simple interest on that amount from the final date for payment until the date of actual payment, such interest to be calculated at a rate of 4% per year above the Bank of England base rate from time to time.

8.3. If the Customer disputes the whole or part of an invoice, the Customer shall notify the Supplier in writing, before the due date for payment. The notice must state that the invoice is disputed and be accompanied by details of the invoice that is being disputed and the reasons for the dispute. The Customer shall pay the undisputed amount of the invoice in accordance with the payment terms under the Statement of Work. The Supplier and the Customer shall each use reasonable endeavours to resolve the dispute as soon as reasonably practicable. The Customer waives the right to dispute its liability to pay any invoice in respect of which it has not raised a dispute in accordance with this clause.

9. Ownership of Intellectual Property Rights

9.1. Except as expressly stated in this clause no Intellectual Property Rights of either party are transferred or licensed under the Contract.

9.2. Any items that are developed specifically for the Customer by the Supplier under the Contract shall belong to and be the property of the Customer.

9.3. Save for any Intellectual Property Rights in any Deliverables, all Intellectual Property Rights used or created in the performance of the Services shall belong to the Supplier. The Supplier shall own all methodologies and ideas utilised in implementing the Services and creating any Deliverables. The Supplier grants to the Customer a non-exclusive right and licence to uses any Intellectual Property Rights of the Supplier in the use of the Services for the Customer’s own benefit.

10. Data protection

10.1. The parties agree that the Customer is a Data Controller and that the Supplier is a Data Processor (as such terms are defined in Data Protection Laws) for the purposes of processing protected data in the performance of the Services. Each party shall at all times comply with all Data Protection Laws in connection with the processing of personal data. The Customer shall ensure all instructions given by it to the Supplier in respect of personal data shall at all times be in accordance with Data Protection Laws.

10.2. The Supplier shall process personal data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

• 10.2.1. The Supplier shall only process the personal data in accordance with these General Terms and any requirements of any Statement of Work, except to the extent:
• (a) that alternative processing instructions are agreed between the parties in writing; or
• (b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest).
• 10.2.2. If the Supplier believes that any instruction received by it from the Customer is likely to infringe Data Protection Laws it shall be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.

10.3. Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain technical and organisational measures to protect the personal data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.

11. Confidentiality

11.1. Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Affiliates including, any details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 11.2. Confidential Information of either party will not, however, include any information that (1) is or becomes (through no improper action or inaction by the receiving party or any of its employees, officers, consultants, representatives or advisers (Representatives)) generally available to the public, (2) was in its possession or known by it prior to receipt from the disclosing party, (3) was rightfully disclosed to it by a third party without restriction; or (4) is required by law, rule or regulation or by subpoena order of a court of competent jurisdiction, governmental or quasi-governmental agency or regulatory body provided that the receiving party shall use its best efforts to limit disclosure and to obtain confidential treatment or protective order and, further, has allowed the disclosing party to participate in the applicable proceeding, or (5) is independently developed by the receiving party without use or reference to disclosing party’s Confidential Information.

11.2. A party may:

• 11.2.1. disclose any Confidential Information to any of its Representatives who need to know the relevant Confidential Information for the purposes of the performance of any obligations under the Contract, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 11 as if it were a party;
• 11.2.2. disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
• 11.2.3. use Confidential Information only to perform any obligations under the Contract.

11.3. Each party recognises that any breach or threatened breach of this clause 11 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.

11.4. This clause 11 shall bind the parties during the Term and for a period of five years following the termination of the Contract.

12. Non solicitation

12.1. In order to protect the legitimate business interests of each party, each party covenants with the other party that it shall not (except with the prior written consent of other party):

• 12.1.1. attempt to, or actually, solicit or entice away from employment or service of the other party or any of its Affiliates; or
• 12.1.2. employ or engage or otherwise facilitate the employment or engagement of, any Restricted Person.

12.2. Each party shall be bound by the covenant set out in clause 12.1 during the term of any Contract and for a period of 2 years after termination or expiry of any Contract.

12.3. For the purposes of clause 12.1, a Restricted Person shall mean, in respect of one party, any person employed or engaged by the other party or any of its Affiliates during the term of a Contract and/or who has been engaged in the provision of services either as principal, agent, employee, independent contractor or in any other form of employment or engagement by the other party or any of its Affiliates for the benefit of such party or any of its Affiliates, whether during or prior to the term of a Contract.

13. Limitation of liability

13.1. The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.

13.2. Subject to clauses 13.1 and 13.5, the Supplier’s aggregate liability in respect of any Statement of Work shall not exceed an amount equal to the fees paid by the Customer within the period of 12 months prior to the event giving rise to the liability under that Statement of Work. The existence of one or more claims under any Statement of Work shall not increase the Supplier’s liability.

13.3. Neither party shall be liable for consequential, indirect or special losses nor for any loss of profit, loss or corruption of data, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated) or any loss of goodwill.

13.4. Except as expressly stated in the Contract, and subject to clause 13.5, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.

13.5. Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

• 13.5.1. death or personal injury caused by negligence;
• 13.5.2. fraud or fraudulent misrepresentation; or
• 13.5.3. any other losses which cannot be excluded or limited by applicable law.

14. Termination

14.1. These General Terms shall apply to the Services provided under a Statement of Work and shall continue to apply to all services performed for the duration of any such Statement of Work.

14.2. Without affecting any other right or remedy available to it, either party may suspend its performance under and/or terminate a Statement of Work in accordance with the provisions of this clause 14.

14.3. The parties shall agree Statements of Work to set out the Services to be delivered and each Statement of Work will have its own duration and shall continue for the period of that Statement of Work, subject to the provisions of this clause 14.

14.4. Either party may suspend its performance under and/or terminate any Statement of Work immediately at any time by giving notice in writing to the other party if:

• 14.4.1. the other party fails to pay any amount due under a Statement of Work and/or these General Terms on the due date for payment and remains in default more than three business days after being notified in writing to make such payment; or
• 14.4.2. the other party commits a material breach of a Statement of Work and/or these General Terms and such breach is not remediable, or the other party commits a material breach of a Statement of Work and/or these General Terms which is not remedied within 20 business days of receiving written notice of such breach; or
• 14.4.3. the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

14.5. If a party becomes aware that any event has occurred, or circumstances exist, which may entitle the other party to suspend its performance under and/or terminate any Statement of Work under this clause 14, it shall immediately notify the other party in writing.

14.6. Consequences of termination

Subject to clause 14.7, on termination of a Statement of Work for any reason:

• 14.6.1. the Customer must pay the Fees in full for the Services up to and including the termination date and/or the Supplier shall refund the Customer any prepaid fees covering the remainder of the term of and/or work not done under the Statement of Work after the termination date; and
• 14.6.2. any part of the Contract which, by its nature, should survive termination will continue in force.

14.7. Termination or expiry of any Statement of Work shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry.

15. Force majeure

Except for payment obligations, neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from any event beyond the reasonable control of that party. The party affected by such an event shall promptly notify the other party in writing when such an event causes a delay or failure in performance and when it ceases to do so. If such an event continues for a continuous period of more than 3 months, either party may terminate the Contract by written notice to the other party.

16. No partnership or agency

The parties are independent businesses and are not partners, principal and agent or employer and employee and no Contract establishes any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

17. Notices

17.1. Notices under the Contract shall be in writing and sent to a party’s address as set out in the Statement of Work (or to the email address provided).

17.2. Any notice shall be deemed to have been received:

• 17.2.1. if delivered by hand, on signature of a delivery receipt;
• 17.2.2. if sent by pre-paid first-class post or other next Business Day delivery services, at 9.00 am on the second Business Day after posting; and
• 17.2.3. if sent by email, at the time of transmission, or, if this time is outside business hours (9.00am to 5.00pm) on a working day in the place of receipt, when business hours resume.

17.3. This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18. Waiver

No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy.

19. Assignment and Subcontracting

19.1. Subject to clause 19.2, no party may assign, subcontract or encumber any right or obligation under any Statement of Work, in whole or in part, without the other’s prior written consent (such consent not to be unreasonably withheld or delayed). Subject to the foregoing, these General Terms will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

19.2. The Supplier may subcontract or otherwise delegate the performance of any of its obligations under any Statement of Work without the consent of the Customer, except as otherwise expressly provided in a Statement of Work. Where the Supplier subcontracts or otherwise delegates the performance of its obligations, the Supplier shall remain liable for the performance of its subcontractors and delegates.

20. Entire Agreement

The Contract shall form the entire agreement in respect of the provision of the Services by the Supplier to the exclusion of all other terms.

21. Amendments

Any amendments to the Contract shall only be effective if in writing and signed by both parties.

22. Third party rights

Except as expressly provided for in the Contract, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

23. Governing law

These General Terms and any Statement of Work and any dispute or claim arising out of, or in connection with, them, their subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

24. Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, these General Terms and/or any Statement of Work, their subject matter or formation (including non-contractual disputes or claims).