Restrata Terms of Business

CONFIDENTIAL

DOCUMENT NO: RES-IMS-LEG-T-21

SECTION 3 - GENERAL TERMS OF BUSINESS

1. DEFINED TERMS    

In addition to any terms in the Order Form, the following definitions apply to this Agreement.

1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For the purposes of this definition, an entity will be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity);

1.2 “Agreement” means this Agreement (including all Sections and any executed Change Order);

1.3 “Authorised Profiles” means those employees of the Client who are authorised by the Client to have a profile in connection with the Services, the maximum number of Authorised Profiles permitted on the Restrata Platform by Restrata is set out in the Key Terms in Section 1;

1.4 “Authorised Users” means those employees of the Client who are authorised by the Client to set up a user profile on the Restrata Platform, the maximum number of Authorised Users of which is set out in Section 1;

1.5 “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

1.6 “Change Order” means a change order that is agreed between Restrata and the Client, the process is further detailed in Clause 2 and template set out at Section 5;

1.7 “Confidential Information” means all correspondence, conversations, information or data (whether oral, visual, recorded in writing, in any other medium or by any other method) disclosed to or obtained by one Party from the other or from a third party, including any information relating to a Party’s operations, processes, plans, intentions, price lists, pricing structures, know-how, design rights, trade secrets, software, market opportunities, customers, business affairs, personal and family affairs, this Agreement or information which the Parties knew or ought reasonably to have known to be confidential (whether or not marked as confidential);

1.8 “Client Data” means the data inputted by the Authorised Users or Restrata on the Restrata Platform which shall include but not be limited to the personal data of the Authorised Users and Authorised Profiles, for the purpose of using the Services;

1.9 "Client Dependencies" means any obligations under this Agreement with which the Client is required to comply to enable Restrata to provide the Services including, but not limited to, the Client Dependencies stated in the Order Form.

1.10 "Documentation" means those instructions, manuals, screens and diagrams distributed or otherwise provided by Restrata that pertain to the Services;

1.11 “Force Majeure Event” means any unforeseeable circumstances outside the control of Restrata that prevent Restrata, or any third party used by Restrata in connection with this Agreement from complying with Restrata’s obligations under this Agreement including any uptime commitments

1.12 “Hardware” means any hardware (if applicable) provided by Restrata as part of the Services;

1.13 “Intellectual Property Rights” means any and all patent, rights to inventions, trade secret, trademark, copyright and neighbouring rights, the right to sue for passing off, rights in get-up, database rights, know-how, confidential information, databases, domain names, business names, rights in computer software, goodwill industrial design and all other intellectual property rights, in each case whether registered or unregistered and including all 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.

1.14 "Order Form" means a written request by the Client (in terms agreed with Restrata in Section 1 and Section 2) for the provision by Restrata of the Services in such form as Restrata may require, which is executed by Restrata and the Client.

1.15 “Restrata Platform” means the Platform address provided to the Client by Restrata where the Services can be accessed and as may be updated from time to time;

1.16 "Security Documentation" means such documentation as may be in place from time to time describing the security measures implemented by Restrata to the provision of the Services;

1.17 “Service Credits” means the credit(s) which will be applied to the Client account in connection with Restrata’s failure to achieve the Monthly Uptime as further detailed in specified in Section 6.

1.18 “Services”means the services provided by Restrata to the Client under this Agreement and includes any Software, Hardware and the Restrata Platform provided in connection with the services as further described in Section 1 and Section 2;

1.19 “Software” means the software applications provided via the Restrata Platform or via Restrata as part of the Services, as specified in Section 1 and Section 2 of this Agreement; and

1.20“Virus” means 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, malicious code, and other similar things or devices.

2. INTERPRETATION

2.1 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement. Unless the context otherwise requires, references to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

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

2.3 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

2.4 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.

2.5 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision, as updated, superseded and repealed or restated from time to time.

2.6 All schedules are hereby incorporated by reference into this Agreement.

2.7 If there is any inconsistency between the provisions of the Sections, the order of precedence shall be any executed Change Orders under Section 5, Section 1 (Key Terms), Section 2 (Services & Fees), Section 4 (Data Processing Agreement), Section 3 (General Terms of Business), Section 6 (Service Levels and Credits).

3. THE SERVICES

3.1. Subject to the Client paying the Fees in respect of the Services and acting at all times in accordance with this Agreement, Restrata hereby grants to the Client a limited, non-exclusive, non-transferable, revocable right, without the right to grant sublicences, to permit the Authorised Users to use the Services solely for its own internal business purposes during the Initial Subscription Term and any Renewal Term.

3.2. In relation to the use of the Services, the Client undertakes that:

3.2.1. the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed the number that has been agreed with Restrata; and

3.2.2. it shall ensure that it shall not exceed the maximum number of Authorised Profiles.

3.3. In the event that the Client, any Client personnel employee or third party authorised by the Client has provided access to an individual who is not an Authorised User then without prejudice to Restrata’s other rights, Restrata shall promptly notify the Client and may disable such passwords and Restrata shall not issue any new passwords to any such individual. Restrata reserves the right to audit the Client’s records and systems upon providing reasonable prior notice to ensure compliance with the terms of this Agreement, including the accurate reporting of the number of Authorised Users or Authorised Profiles. The Client agrees to provide all reasonable cooperation with any such audit and to provide access to relevant information, systems, and personnel as required for its completion.

3.4. In the event that the Client has underpaid Fees to Restrata in respect of the Authorised Users or Authorised Profiles, then without prejudice to Restrata’s other rights, the Client shall pay to Restrata an amount equal to such underpayment as calculated in accordance with the prices set out in this Agreement within ten (10) Business Day of receipt of invoice. Restrata reserves the right to charge interest on unpaid portion of the Fees at the rate specified in Clause 2.2.

3.5. The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that interferes with or attempts to interfere with the operation of the Services or:

3.5.1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

3.5.2. facilitates illegal activity;

3.5.3. depicts sexually explicit images;

3.5.4. promotes unlawful violence;

3.5.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

3.5.6. is otherwise illegal or causes or is likely to cause damage or injury to any person or property;

and Restrata reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.

3.6. In connection with the Services the Client shall not (or allow any person or entity (whether with or without consideration)):

3.6.1. Except to the extent as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

3.6.1.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means; or

3.6.1.2. sublicense, transfer and/or assign the Services or any element of the Services to any third party, whether with or without consideration;

3.6.1.3. render any services to third parties using the Services unless required by law or specifically authorised in writing (including email) by Restrata;

3.6.1.4. remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Services;

3.6.1.5. attempt to de-compile, reverse compile, disassemble, reverse engineer, or attempt to derive the architecture or design, or any source code or object code or otherwise reduce to human-perceivable form all or any part of the Services; or

3.6.1.6. allow any third parties to use the Services unless required by law or specifically authorised in writing (including email) by Restrata. Restrata acknowledges that in the event of a major incident that authorisation may occur after access has been granted to third parties such as the police. In such scenario, Client shall notify Restrata as soon as possible of any such access.

3.6.2. access all or any part of the Services in order to build a product or service which competes with the Services; or

3.6.3. use the Services to provide services to third parties; or

3.6.4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users, or

3.6.5. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this Clause 3;

3.6.6. remove or obscure any proprietary notices, labels or marks on the Services or any part of the Services;

3.6.7. defeat or attempt to defeat any security mechanism of the Services; or

3.6.8. introduce or permit the introduction of any Virus into Restrata’s network and information systems.

3.6.9. The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Restrata.

3.6.10. The rights provided under this Clause 3 are granted to the Client only and shall not be considered granted to any subsidiary or holding company of the Client or any Affiliate.

3.7. Where Restrata has agreed to provide the Client with Hardware under Section 2, Restrata will use commercially reasonable efforts to ship the Hardware and deliver it to the Client on the delivery dates agreed in writing with the Client provided, however, that Client's sole and exclusive remedy for any delay in delivery or for failure to give notice of delay shall be for Restrata to make such delivery as soon as reasonably practicable. Restrata is not liable for the acts or omissions of any third-party courier or shipping provider. Restrata may withhold or delay shipment of any Hardware if Client is late in making payment or is otherwise in default under this Agreement. Restrata will deliver the Hardware under the Incoterms 2020 to the site specified in Section 1. The Client will be responsible for all costs associated with shipping and delivery including, without limitation, freight, shipping, customs charges and expenses, cost of special packaging or handling and insurance premiums incurred by Restrata in connection with shipping of the Hardware to the Client.

3.8. Restrata will identify itself in all documents related to the shipment of Hardware as the exporter of record from the applicable jurisdiction of export, and Client as the importer of record into the jurisdiction of delivery.

4. CHANGES TO THE SERVICES

4.1. If the Client wishes to increase the maximum number of Authorised Users and/or Authorised Profiles which has been agreed with Restrata, the Client shall notify Restrata in writing. Restrata shall evaluate such request and respond to the Client with approval or rejection of the request (such approval not to be unreasonably withheld) and the additional fees payable. Where Restrata approves the request, Restrata shall activate the additional Authorised Users and/or Authorised Profiles within 10 days of its approval of the Client’s request.

4.2. If the Client wishes to make any other changes to the Services, this shall be done via a Change Order using the template set out in Section 5. Change Orders will be in written form and will be delivered by hand, mail, courier or other electronic transmission. Once the Change Order has been executed by both Parties it shall constitute a binding contract between Restrata and the Client, separate and distinct from any other Change Order and shall be deemed to incorporate the terms contained in this Agreement.

4.3. The Client acknowledges that the Services may evolve over time and that functionality may be added or removed from time to time. Restrata may, without limitation to the generality of this Clause 3, establish new limits on the Services (or any part thereof), including limiting the volume of data which may be used, stored or transmitted in connection with the Services, remove or restrict application programming interfaces, or make alterations to data retention periods, or other such modifications, updates or upgrades to the Services from time to time, provided such changes are notified to the Client reasonably in advance.

5. CLIENT DATA

5.1. The Client shall own all rights, titles and interests in all of the Client Data including Personal Data (as defined in Section 4) and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data and that its use (including use in connection with the Services) complies with all applicable laws. The Client hereby grants to Restrata a non-exclusive, worldwide, royalty-free, fully paid-up license for Restrata, its Affiliates and its direct and indirect subcontractors, to use, copy and otherwise utilize the Client Data to the extent necessary to perform or provide the Services, or to exercise or perform Restrata's rights, remedies and obligations under this Agreement.

5.2. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against Restrata shall be for Restrata to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Restrata. Restrata shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Restrata to perform services related to Client Data maintenance and back-up for which it shall remain liable).  For the avoidance of doubt, Restrata will not be providing any backup or storage services to the Client.

5.3. Client warrants and represents that it has the right to authorise (and hereby does authorise) Restrata, its Affiliates and subcontractors to collect, store and process the Client Data in accordance with the terms of this Agreement. Client acknowledges that Restrata has no control over any Client Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Client Data.

5.4. In the event that the Client Data is inaccurate, Client will have sole responsibility for correcting any inaccurate Client Data. To the extent that the Services include a requirement for Restrata to update and manage the Client Data, Client will promptly provide Restrata with details of any Client Data which is to be corrected or updated from time to time. Restrata will, to the fullest extent permissible by applicable law, have no liability for any claims, losses or otherwise arising out of or in relation to Client's failure to ensure that the Client Data is up to date.

5.5. Restrata shall, in providing the Services, comply with its Security Documentation which shall be provided to the Client via the Restrata Platform, as such document may be amended from time to time by Restrata in its sole discretion. Restrata will maintain compliance with Security Documentation throughout the Term.

5.6. Both parties will comply with all applicable requirements of the Data Protection Legislation and the requirements set out in Section 4, Data Processing Agreement. The Data Processing Agreement is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

5.7. Unless otherwise agreed in writing, Restrata will not be required to provide Client with any assistance in extracting, transferring or recovering Client Data during or after the Term.

6. THIRD-PARTY PROVIDERS  

6.1. The Client acknowledges that the Services may enable or assist it to access the website content of and correspond with third parties via third-party websites, and that it does so solely at its own risk. Restrata makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third-party. Any contract entered into, and any transaction completed via any third-party website is between the Client and the relevant third-party, and not Restrata. Restrata recommends that the Client refers to the third-party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Restrata does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7. RESTRATA’S OBLIGATIONS 

7.1. Restrata undertakes that the Services will be performed with reasonable skill and care and that the Software will materially conform with the Documentation.

7.2. If Restrata's performance prevented, hindered or delayed by any act or omission of the Client including but not limited to: (i) a failure to comply with one or more of the Client Dependencies; (ii) there is a material change to the Client's network or systems; or (iii) there is a material change to a third party's systems or platform to which the Client has provided Restrata with access to for the purpose of providing the Services (a "Relief Event”), Restrata will not be liable for any costs, charges, liabilities or losses sustained or incurred by Client arising directly or indirectly from a Relief Event and Restrata will be relieved of its obligations to provide the Services to the extent such performance is impeded by such Relief Event. The Client is responsible for any costs associated with any delays caused or contributed to by a Relief Event. In the event of such delay, Restrata will be afforded an extension of time equal to the time attributable to the delay caused by the Relief Event to perform its obligations.

7.3. If the Services do not materially conform with the Specifications, subject to Clause 2 Restrata will, at its expense, use reasonable commercial endeavours to (a) correct any such non-conformance promptly. Such correction constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in Clause 7.1. Notwithstanding the foregoing, Restrata:

7.3.1. does not warrant that the Client’s use of the Services will be uninterrupted or error-free;

7.3.2. does not warrant that the Services and/or the information obtained by the Client through the Services will meet the Client’s requirements; and

7.3.3. is not responsible or liable 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, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and

7.4. This Agreement shall not prevent Restrata from entering into similar agreements with third-parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement. 

7.5. Restrata warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7.6. Client acknowledges that, unless otherwise specified in writing, the Services are a passive conduit for the transmission of Client Data, and Restrata has no obligation to screen, preview or monitor content, and shall have no liability whatsoever (subject to Clause 2, have no liability whatsoever for any errors or omissions or for any defamatory, libelous, offensive or otherwise unlawful context in any Client Data or for any losses, damages, claims, liabilities, settlement, costs (including costs of investigation, litigation, settlement and judgment), claims, demands, disbursements, expenses (including legal costs on a solicitor and own-client basis), fees, interest and penalties (including fines imposed by regulatory bodies or supervisory authorities) and/or actions (together "Losses") out of or in connection with any data sent, accessed, posted or otherwise transmitted via the Services by the Client or any Authorised Users or unauthorised users. Client shall provide Restrata with all necessary information and shall actively cooperate with Restrata with regard to Client's and its Authorised Users' access to any of the Services and proper performance of the Client's obligations.

7.7. Unless otherwise mutually agreed between the parties in writing, the warranty period for any Hardware provided in connection with the Services shall be twelve (12) months from the date the Client receives the Hardware (“Warranty Period”). Restrata reserves the right to change a warranty period for a specific Hardware; provided that only orders placed after the effective date of such change shall be affected. Restrata warrants that, for the Warranty Period: (1) all components of such Hardware, except software components shall   be   free   from   faulty   workmanship   and defective materials; and (2) all software components of such Hardware shall substantially conform to the written documentation designated by Restrata for use with such software components. The warranties provided by Restrata in this Agreement are the only warranties provided by Restrata with respect to the Hardware and may be modified only by a written instrument signed by Restrata and accepted by the Client.

7.8. The foregoing warranty does not apply to any defects, damages, failures or malfunctions to all or any part of the products resulting from: (i) negligence, abuse, or misapplication of the Hardware; (ii) use of the products other than as specified in the applicable documentation or otherwise in other than its normal and customary manner; (iii) any alterations, modifications or adaptations of the products performed by anyone other than Restrata; (iv) any unauthorized combination or interfacing of the products with other hardware or software; (iv) any act of god, accident, fire or other hazard; or (v) other causes beyond the reasonable control of Restrata. Except as expressly set forth in this Agreement, Restrata disclaims any and all promises, representations, and warranties with respect to the Hardware, including condition, quality, conformity to any representation or description, the existence of any latent or patent defects, any negligence, and merchantability or fitness for a particular use.  The Client’s sole and exclusive remedy for breach of the warranties set forth at Clause 7 shall be that Restrata, at Restrata's sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Hardware within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by the Client for such Hardware (after deducting amounts paid for actual use of the Hardware by the Client).  To claim the benefit of this warranty, the Client must give Restrata written notice of any breach of the warranty (as aforesaid) within the Warranty Period.

8. CLIENT’S OBLIGATIONS

8.1. The Client is responsible for all activity occurring under the Client's account and shall:

8.1.1. in a timely and efficient manner, provide Restrata with:

8.1.1.1. all necessary co-operation in relation to this Agreement; and

8.1.1.2. all necessary access to such information or premises as may be required by Restrata;

in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

8.1.2.without affecting its other obligations under this Agreement, comply with all applicable laws (including anti-corruption and anti-bribery laws) and regulations, in particular any Financial Conduct Authority regulations and obligations with respect to its activities under this Agreement;

8.1.3. digitally sign, accept or otherwise legally accept any end user license agreements (“EULA”) required and as may be updated from time to time in order to gain access and use the Services;

8.1.4. carry out all Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client’s provision of such assistance as agreed by the parties, Restrata may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.5. ensure that the Authorised Users use the Services in accordance with this Agreement;

8.1.6. ensure that the Authorised Users are provided with and agree to the Restrata Terms and Conditions and Client Data being held in accordance with the Restrata Privacy Policy which will be provided on the Restrata Platform;

8.1.7. obtain and shall maintain all necessary licences, consents (including, but not limited to, the consent (if required) of the Authorised Users and Authorised Profiles), permissions and access necessary for Restrata, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

8.1.8. ensure that its network and systems comply with the relevant specifications provided by Restrata from time to time;

8.1.9. notify Restrata promptly upon becoming aware of any misuse of or unauthorised access to the Services or any other act or omission which amounts to a breach or violation of this Agreement;

8.1.10. be solely responsible for ensuring that the Services are fit for the Client’s purpose and meet the needs of the Client; and

8.1.11. be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Restrata’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client’s network connections or telecommunications links or caused by the internet.

8.2. If Restrata's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, subcontractors, consultants or employees, Restrata shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

9. CHARGES AND PAYMENT

9.1. The Client shall pay the Fees according to this Clause 9 and Section 2.

9.2. If Restrata has not received payment on the due date, and without prejudice to any other rights and remedies of Restrata:

9.2.1. Restrata may, without liability to the Client, disable the Client’s access to all or part of the Services and Restrata shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.2.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment. During a period of suspension, Client will remain liable for the payment of all Fees payable during a suspension period.

9.3. All amounts and fees stated or referred to in this Agreement:

9.3.1. non-cancellable and non-refundable;

9.3.2. are exclusive of value added tax, which shall be added to any Restrata invoice at the appropriate rate; and

9.3.3. shall be paid by the Client within 30 days of the date of any relevant invoice.

9.4. Restrata shall be entitled to increase the Fees on an annual basis by the greater of (i) five (5) per cent or (ii) the percentage increase in the Consumer Price Index (CPI) (or an equivalent measure of inflation) over the preceding 12-month period, upon giving the Client at least 30 days’ written notice.

9.5. The risk in the Hardware shall pass to the Client on completion of delivery.

9.6. Title to the Hardware shall not pass to the Client until Restrata receives payment in full (in cleared funds) for the Hardware and any other goods that Restrata has supplied to the Client, in which case title to the Hardware shall pass at the time of payment of all such sums.

9.7. Until title to the Hardware has passed to the Client, the Client shall:

9.7.1. not remove, deface or obscure any identifying mark or packaging on or relating to the Hardware;

9.7.2. notify Restrata immediately if it becomes subject to any of the events listed in Clause 2.3 to Clause 15.2.5; and

9.7.3. give Restrata such information as Restrata may reasonably require from time to time relating to:

9.7.3.1. the Hardware; and

9.7.3.2. the ongoing financial position of the Client.

9.8. At any time before title to the Hardware passes to the Client, Restrata may require the Client to deliver up all Hardware in its possession that have not been resold, or irrevocably incorporated into another product and if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Hardware are stored in order to recover them.

10. PROPRIETARY RIGHTS  

10.1. The Client acknowledges and agrees that Restrata and/or its licensors own all Intellectual Property Rights in the Services and Documentation and will retain all title to and ownership in them. Except as expressly stated herein, this Agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services. All related concepts, technical how-how and all modifications customizations, revisions, bug fixes, enhancements, improvements and derivative works (collectively, the “Derivative Works”) thereof developed by Restrata or anyone else, including all Intellectual Property Rights and, except for the expressed limited license granted hereunder, the Client shall have no rights in or claims with respect thereto. Restrata may use and exploit any feedback and suggestions for improvement relating to the Services provided by the Client or any Authorised User or Authorised Profile ("Feedback") without charge or limitation.

10.2. Restrata confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

11. CONFIDENTIALITY

11.1 Each Party may be given access to Confidential Information from the other Party to perform its obligations under this Agreement. A Party’s Confidential Information shall be deemed not to include information that:

11.1.1 is or becomes publicly known other than through any act or omission of the receiving Party;

11.1.2. was in the other party’s lawful possession before the disclosure;

11.1.3. is lawfully disclosed to the receiving party by a third-party without restriction on disclosure; or

11.1.4. is independently developed by the receiving Party, which independent development can be shown by written evidence.

11.2. Subject to Clause 11.4, each Party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third-party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

11.3. Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its officers, employees or agents in violation of the terms of this Agreement.

11.4. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 11.4 it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

11.5. Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third-party.

11.6. The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Restrata’s Confidential Information.

11.7. Restrata acknowledges that the Client Data is the Confidential Information of the Client.

11.8. No Party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other Party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11.9. The above provisions of this Clause 11 shall survive termination of this Agreement, however arising.

12. INDEMNITY  

12.1. The Client shall defend, indemnify and hold harmless Restrata against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) the Client’s use of the Services other than in accordance with the terms of this Agreement; (ii) any Client Data sent, posted or otherwise transmitted via the Services by the Client or its Authorised Users; (iii) Client's provision of the Client Data in breach of applicable Data Protection Legislation; (iv) Client's breach of Clauses 5 or 8 of this Agreement or Section 4; or (v) Client's use of the Software in a manner which misappropriates or infringes the Intellectual Property Rights of a third party, provided that:

12.1.1. the Client is given prompt notice of any such claim;

12.1.2. Restrata provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and

12.1.3. the Client is given sole authority to defend or settle the claim.

12.2. Restrata shall defend the Client, against any third-party claim that the Services infringes any patent effective as of the Start Date, copyright, trademark, or database right, and shall indemnify the Client for any amounts awarded against the Client in final judgment or settlement of such claims, provided that:

12.2.1. Restrata is given prompt notice of any such claim;

12.2.2. the Client provides reasonable co-operation to Restrata in the defence and settlement of such claim, at Restrata’s expense; and

12.2.3. Restrata is given sole authority to defend or settle the claim.

12.3. In the defence or settlement of any claim, Restrata may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

12.4. In no event shall Restrata, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

12.4.1. a modification of the Services by anyone other than Restrata; or

12.4.2. the Client’s use of the Services in a manner contrary to the instructions given to the Client by Restrata;

12.4.3. the Client’s use of the Services after notice of the alleged or actual infringement from Restrata or any appropriate authority.

12.5. The foregoing states the Client’s sole and exclusive rights and remedies, and Restrata’s (including Restrata’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right, right of confidentiality or other intellectual property right, or for breach of paragraph 7.4 of the DPA.

13. LIMITATION OF LIABILITY

13.1. Except as expressly and specifically provided in this Agreement:

13.1.1. the Client assumes sole responsibility for the configuration of the Services. Restrata shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Restrata by the Client in connection with the Services, or any actions taken by Restrata at the Client’s direction;

13.1.2. all warranties, representations, conditions and all other terms of any kind whatsoever, whether express or implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement unless otherwise specified herein including, but not limited to, those pertaining to quality, fitness for a particular purpose or ability to achieve a particular result. Restrata does not warrant that the Services will operate error-free or without interruption;

13.1.3. the Services are provided to the Client on an “as is” basis; and

13.1.4. the Client assumes sole responsibility for the Authorised Users, and Restrata shall have no liability in respect thereof.

13.2. Nothing in this Agreement excludes the liability of a Party:

13.2.1.for death or personal injury caused by that Party’s negligence; or

13.2.2. for fraud or fraudulent misrepresentation.

13.3. Subject to Clauses 13.1 and 13.2:

13.3.1. Restrata will not be liable for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, including loss of profit, loss of goodwill, loss of or corruption of data, loss caused or contributed to by any agent or representative of the Client, loss caused as a result of the Services being unavailable as a result of planned downtime for the Software, as notified to the Client from time to time, loss arising from any failure of the Client's infrastructure and/or utilities, loss caused as a result of the Services being unavailable due to a Force Majeure Event, or loss caused by the failure or delay of any third party application, services or network; and

13.2.2. Restrata’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total fees paid by the Client to Restrata pursuant to this Agreement during the 12 months immediately preceding the date on which the claim arose. 

13.4. Client acknowledges that the use of Short Messaging Services ("SMS"), also known as text messaging, as a means of sending messages involves a reasonably likely possibility from time to time of delayed, undelivered or incomplete messages and that the process of transmitting SMS messages can be unreliable and include multiple third parties that participate in the transmission process, including mobile network operators and intermediary transmission companies. Accordingly, Restrata recommends that SMS messaging not be used as the sole means of communication in an emergency situation and the Client is therefore required to use multi-modal communications in emergency settings. Restrata shall not be responsible for any failure in the delivery of any SMS messages.

14. INSURANCE

14.1. Restrata currently maintains at a minimum, with a reputable insurer, the insurances set forth in this clause (which are at least equal to statutory requirements):

14.1.1. Employers’ liability insurance in an amount that is not less than five million GBP5,000,000;

14.1.2. Public and products’ liability insurance in an amount that is not less than GBP5,000,000; and

14.1.3. Professional liability insurance in an amount that is not less than GBP5,000,000.

14.2. Upon request by Restrata, the Client shall provide Restrata with certificates of insurance or certified copies giving evidence of the types, scope and duration of each insurance that it maintains.

15. TERM AND TERMINATION  

15.1. This Agreement shall commence on the Start Date and will continue until the end of the Initial Subscription Term and shall renew automatically for twelve (12) months (a Renewal Term), unless either Party notifies the other Party of termination, in writing, at least 90 days before the end of the Initial Subscription Term or any Renewal Term unless terminated earlier in accordance with the provisions of this Agreement. Any Renewal Term will be charged at the then-current list price (less any Service Credits which may have been applied), unless otherwise agreed in writing.

15.2. 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:

15.2.1 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;

15.2.2. the other Party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or

15.2.3. the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

15.2.4. the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors 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;

15.2.5. 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 that other party 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; (iv)  an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party; (v) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; (vi) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; (vii) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; (viii) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (i) to (vii) (inclusive); or (ix) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15.3. On termination of this Agreement for any reason:

15.3.1. all licences granted under this Agreement shall immediately terminate and the Client shall immediately cease all use of the Services;

15.3.2. Client will immediately pay to Restrata all amounts due to Restrata under this Agreement;

15.3.3. each Party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other Party;

15.3.4. Restrata may destroy or otherwise dispose of any of the Client Data in its possession in accordance with this Agreement, unless Restrata receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. Restrata shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at, and resulting from, termination (whether or not due at the date of termination). The Client shall pay all reasonable expenses incurred by Restrata in returning or disposing of Client Data; and

15.3.5. 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

16. FORCE MAJEURE  

Restrata shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this 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 Restrata or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Client is notified of such an event and its expected duration.

17. VARIATION 

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

18. 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

19. RIGHTS AND 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.

20. SEVERANCE  

20.1. 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.

20.2. If any provision or part-provision of this Agreement is deemed deleted under Clause 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.

21. ENTIRE AGREEMENT  

21.1. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.2. Each Party acknowledges that in entering into this Agreement it does not rely on, and 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.

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

22. ASSIGNMENT  

22.1. The Client shall not, without the prior written consent of Restrata, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22.2. Restrata may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

23. NO PARTNERSHIP OR AGENCY  

Nothing in this Agreement is intended to or shall operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the 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).

24. THIRD-PARTY RIGHTS  

24.1. This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25. NOTICES  

25.1. Any notice required to be given under this 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 set out in Section 1 of this Agreement, or such other address as may have been notified by that Party for such purposes.

25.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 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. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

26. NON-SOLICITATION

Neither Party shall, without the prior written consent of the other Party, at any time from the date of this Agreement to the expiry of 12 months after the termination of this Agreement, solicit or entice away from the other Party or employ or attempt to employ any person who is, or has been, engaged as an employee, consultant or subcontractor of the other Party in relation to the receipt or provision of the Services.

27. SURVIVAL

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 shall remain in full force and effect.

28. DISPUTE RESOLUTION

28.1. If any dispute arises in connection with this Agreement, the Restrata Contact and Client Contact will, within 14 days of a written request from a Party to the other, meet to resolve the dispute. If the dispute is not wholly resolved at that meeting, the matter shall be referred to a director of Restrata and the Client.  If the matter is still not resolved within 14 days of the meeting, the Parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre of Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the Parties within 14 days of notice of the mediation, the mediator will be nominated by CEDR. To initiate the mediation a Party must give notice in writing (ADR notice) to the other Party to the dispute, referring the dispute to mediation. A copy of the request should be sent to CEDR. Unless otherwise agreed, the mediation will start no later than 28 days after the date of the ADR notice and the seat for mediation will be London, United Kingdom.

28.2. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.

29. GOVERNING LAW AND JURISDICTION

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 English law and under the exclusive jurisdiction of the English courts.

30. COUNTERPARTS

30.1. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute an original and together will constitute the one Agreement. This Agreement will not be deemed validly executed unless and until each Party has executed at least one counterpart.

SECTION 4 - DATA PROCESSING AGREEMENT

DEFINITIONS

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, Processing and appropriate technical and organisational measures shall have the meaning as set out in the Data Protection Legislation.

Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).

Standard Contractual Clauses means the European Commission's Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 as set out in the Annex to Commission Implementing Decision (EU) 2021/914 ("EU SCCs") and the UK International Transfer Addendum to the EU SCCs ("UK Addendum").

Subprocessor means any person (including any third party) appointed by or on behalf of Restrata to process Personal Data in connection with the Services.

• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.

1. Each party will comply with its applicable requirements of the Data Protection Legislation. This Data Processing Agreement is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under Data Protection Legislation.

2. The parties acknowledge that for the purpose of the Data Protection Legislation, the Client is the Controller and Restrata is the Processor.

3. Exhibit A describes the subject matter, duration, nature and purpose of processing and the Personal Data categories and Data Subject types in respect of which Restrata may process Personal Data to fulfil the Services.

4. The Client retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including the processing instructions given to Restrata.

5. The Client warrants that Restrata's expected use of the Personal Data for the provision of the Services and as specifically instructed by the Client will comply with the Data Protection Legislation.

6. The Client shall ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Personal Data for the duration and purposes required so that the Personal Data may lawfully be used, processed and transferred in accordance with this Data Processing Agreement.

7. The Client will:

7.1. have at all times during the term of the Agreement appropriate technical and organisational measures to ensure a level of security appropriate to the risk to protect any Personal Data;

7.2. provide clear and comprehensible written instructions to Restrata for the Processing of Personal Data to be carried out under the Agreement;

7.3. ensure that it has an applicable legal basis, for the transfer of Personal Data to Restrata and to the processing of that Personal Data under the Agreement; and

7.4. indemnify, defend and hold Restrata harmless against all loss, liability, damages, costs (including without limitation court costs and reasonable legal fees), fees, claims, actions, proceedings and expenses which Restrata may incur or suffer by reason of any breach of this Data Processing Agreement or the Data Protection Legislation by the Client.

8. Restrata will:

8.1. process the Personal Data in accordance with the written instructions of the Client and comply with any reasonable instructions from the Client in respect to the Processing of the Personal Data given in this Agreement or otherwise agreed in writing between the Parties;

8.2. keep the Personal Data confidential;

8.3. not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third-party unless permitted by the Agreement or required by applicable law;

8.4. ensure that only those of Restrata’s personnel who need to have access to the Personal Data are granted access to such data and only for the purposes of the performance of this Agreement and ensure that all personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this Data Processing Agreement;

8.5. notify the Client without undue delay on becoming aware of a Personal Data Breach. Such notice shall include, at the time of notification or as soon as possible after notification, details of the nature of the breach and number of records affected, the category and approximate number of affected Data Subjects, anticipated consequences of the breach and any actual or proposed remedies for mitigating the possible adverse effects of the breach;

8.6. notify the Client promptly if Restrata receives any notice or communication from any regulatory body concerning the processing of the Personal Data under this Data Processing Agreement and, unless prohibited by Data Protection Legislation or other applicable law, not make any statement (or provide any documents) about matters concerning this Data Processing Agreement, or the processing of Personal Data, without the Client’s written approval. Where Restrata makes a statement (or provide any documents), Restrata shall provide to the Client a copy of any such statements or documents unless prohibited by Data Protection Legislation or other applicable law;

8.7. assist the Client in a manner consistent with the functionality or performance of the Services and its role as a Processor in respect of any Data Subject requests to exercise one or more of their rights under applicable Data Protection Legislation. To the extent legally permitted, Client shall be responsible for any costs arising from Restrata's provision of such assistance beyond the existing functionality or performance of the Services;

8.8. if Restrata receives a request from a Data Subject to exercise one or more of its rights under applicable Data Protection Legislation, Restrata will instruct the Data Subject to make its request directly to the Client. The Client will be responsible for responding to any such request;

8.9. at the Client’s written request, delete or return Personal Data and any copies thereof to the Client on termination of the Agreement unless Restrata is required by Data Protection Legislation or other applicable law to retain the Personal Data; and

8.10. inform the Client immediately if, in Restrata’s reasonable opinion, any instruction from the Client is in breach of, or is likely to breach, Data Protection Legislation.

9. Restrata shall ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. Such measures may include, where appropriate:

9.1. pseudonymising and encrypting Personal Data;

9.2. ensuring confidentiality, integrity, availability and resilience of any systems and services;

9.3. ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident; and

9.4. regularly assessing and evaluating the effectiveness of the technical and organisational measures that have been adopted.

10. Restrata may only engage any Subprocessors to Process the Personal Data if:

10.1. it provides the Client with an opportunity to object to (but not prevent) the appointment of each Subprocessor within 10 days of Restrata providing the Client with reasonable details of the forthcoming changes to its Subprocessors;

10.2. enter into a written contract with the Subprocessor including terms similar to those set out in this Data Processing Agreement and which meet the requirements of Data Protection Legislation; and

10.3. provide to the Client for review such copies of the Subprocessor agreements (which may be redacted to remove confidential commercial information not relevant to the requirements of this Data Processing Agreement) as the Client may reasonably request from time to time.

11. Restrata may transfer Personal Data outside the European Economic Area and the United Kingdom ("GDPR Territories") provided:

11.1. it is processing the Personal Data in a territory which is subject to adequacy decision under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals; or

11.2. it participates in a valid cross-border transfer mechanism under the Data Protection Legislation such as the Standard Contractual Clauses, so that Restrata (and, where appropriate, the Client) can ensure that appropriate safeguards are in place to ensure an adequate level of protection with respect to the privacy rights of individuals as required by Data Protection Legislation; or

11.3. the transfer otherwise complies with the Data Protection Legislation.

12. If any Personal Data transfer between the Client and Restrata requires an adequate protection measure for the international transfer of Personal Data (which has not otherwise been arranged by the Parties) the Standard Contractual Clauses shall be incorporated into this Agreement in the Exhibits to this Schedule 5 as if set out in full.

13. The Client authorises Restrata to enter into Standard Contractual Clauses with any Subprocessor. Restrata will make the executed Standard Contractual Clauses available to the Client on request.

14. Restrata will keep detailed, accurate and up-to-date written records regarding any processing of Personal Data carried out for the Client under this Data Processing Agreement ("Records") and provide the Client with copies of the Records upon reasonable request.

15. No more than once during any consecutive 12-month period, on the Client's request Restrata will provide the Client with the relevant information from its audit (which may have been carried out internally or by third-party representatives) to evidence Restrata's compliance with this Data Processing Agreement and provide the summary results to the Client. The Client shall be entitled to ask questions of Restrata related to compliance with Data Protection Legislation in advance of the audit, Restrata shall use its reasonable endeavours to respond adequately when providing the audit results. On the Client's written request, Restrata will exercise relevant audit rights it has in connection with its Subprocessors' compliance with their obligations regarding the Client's Personal Data and provide the Client with a summary of the audit results. These audit rights are the Client's only contractual rights (and Restrata's only contractual obligations) in connection with the auditing of the Processing of Personal Data under this Data Processing Agreement. Save that nothing in this Data Processing Agreement shall prevent or is intended to undermine the rights and powers granted to Data Subjects or Supervisory Authorities, and accordingly Restrata shall submit to any audits required by a Supervisory Authority or Data Protection Legislation.

Exhibit A

PROCESSING PARTICULARS:

1. Restrata will process personal data for the Client in the course of providing the Services under the Agreement.

2. The Client will provide Restrata with or give Restrata access to the Client's customers' personal data and such customers' employees' personal data to enable Restrata to provide the Services. Restrata will access, store and use the personal data to provide the Services.

3. Purpose of the Processing. For the provision of the Services under the Agreement.

4. Duration of the Processing. For the duration of the Agreement.

5. Types of Personal Data and Categories of Data Subject.

• Names, email addresses and telephone numbers of Client employees.

• Names, email addresses, telephone numbers, role, company name and live location of the Client's customers' employees.

6. Technical and Organisational Security measures. Restrata will maintain the following technical and organisational measures for the protection of personal data:

Risk Assessments: Conduct regular security risk assessments for all business processes, identifying control measures to protect against breaches of confidentiality, integrity, and availability.

Access Control: Implement secure log-on procedures, individual user logins, and strict password policies. Access rights are immediately updated when roles change or users leave the company.

Secure Development Practices: Follow a software development lifecycle that includes separate staging and production environments, code reviews, version control, and regular security testing such as penetration tests and vulnerability scans.

Data Backup and Restoration: Regular automatic backups with integrity verification and restoration testing.

Physical and Environmental Security: Secure office access with logged key controls, escorted visitors, lockable cabinets, and intruder and fire alarm systems for critical equipment.

Change Management: Review and test business-critical applications when platform changes occur to avoid security and operational impacts.

Antivirus/Malware Controls: Use of antivirus monitoring and compliance across all devices.

Disaster Recovery: Implementation of disaster recovery plans for critical systems including data backups for databases and storage components.

Event Logging and Monitoring: Continuous event logging with regular reviews to maintain security oversight.

Encryption and Cryptographic Policy: Use of encryption keys with regular key rotation and incident management for compromised keys.

User Awareness and Training: Ongoing information security training and awareness programs.

Vulnerability Management: Continuous monitoring for technical vulnerabilities with prompt remediation based on risk levels.

Secure Disposal or Reuse of Equipment: Secure data erasure and certification of destruction for devices being disposed of or reused

Exhibit B

EU SCCs

1. Incorporation of the EU SCCs

To the extent Clause 12 applies and the transfer is made pursuant to the GDPR, this Exhibit 2 and the following terms shall apply:

1.1. Where the Client is located in a GDPR Territory and Restrata is located outside of a GDPR Territory, Module 2 of the EU SCCs, and no other optional clauses unless explicitly specified, are incorporated into this Exhibit 2 as if they had been set out in full in the case where the exporter is a Controller, the importer is a Processor and the transfer requires such additional protection; and

1.2. Where Restrata is located in a GDPR Territory and the Client is located outside of a GDPR Territory Module 4 of the EU SCCs, and no other optional clauses unless explicitly specified, are incorporated into this Exhibit 2 as if they had been set out in full in the case where the exporter is a Processor, the importer is a Controller and the transfer requires such additional protection.

2. Clarifications to the eu sccS

2.1. To the extent Module 2 of the EU SCCs applies:

2.1.1. Deletion of data. For the purposes of Clause 8.5 of the EU SCCs (Duration of processing and erasure or return of data), the parties agree as follows: At the end of the provision of the processing services the importer shall delete all Personal Data and shall certify to the exporter that it has done so, if requested to provide such certification by the exporter in writing.

2.1.2. Auditing. The parties acknowledge that the importer complies with its obligations under Clause 8.9 of the EU SCCs (Documentation and compliance) by exercising its contractual audit rights it has agreed with its sub-processors.

2.1.3. Sub-Processors. For the purposes of Clause 9 of the EU SCCs (Use of sub-processors), option 2 (general) applies and the parties agree that the process for appointing sub-processors set out in Clause 10 of Schedule 5 applies.

2.1.4. Competent Supervisory Authority. For the purposes of Clause 13 of the EU SCCs, the competent Supervisory Authority shall be:

i. if the exporter is established in an EU Member State: The Irish Data Protection Commissioner;

ii. where the exporter is not established in an EU Member State and has appointed a representative pursuant to Article 27(1) GDPR, it shall notify the importer of this and the EU Member State in which the exporter's representative is appointed shall be the competent Supervisory Authority; and

iii. where the exporter is not established in an EU Member State, but falls within the territorial scope of Article 3(2) GDPR but has not appointed a representative pursuant to Article 27(1) GDPR: the exporter shall notify the importer of its chosen competent supervisory authority, which must be the Supervisory Authority of an EU Member State in which the Data Subjects whose personal data is transferred under the EU SCCs in relation to the offering of goods or services to them, or whose behaviour is monitored, are located.

2.2. To the extent Module 2 and Module 4 of the EU SCCs apply:

2.2.1. International Transfer Assessments. For the purposes of Clause 14(c) of the EU SCCs (Local laws and practices affecting compliance with the Clauses) the exporter has been provided with a transfer impact assessment by the importer which the exporter accepts as sufficient to fulfil the importer's obligations pursuant to Clause 14(c) and 14(a). The exporter acknowledges that it has been provided with the security measures applied to the Personal Data and approves such measures as being in compliance with the EU SCCs.

2.2.2. Best Efforts Obligations. For the purposes of Clauses 14(c), 15.1(b) and 15.2 of the EU SCCs (Local laws and practices affecting compliance with the clauses) the parties agree that "best efforts" and the obligations of the importer under Clause 15.2 shall mean exercising the degree of skill and care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a leading practice engaged in a similar type of undertaking under the same or similar circumstances and shall not include actions that would result in civil or criminal penalty such as contempt of court under the laws of the relevant jurisdiction.

2.2.3. Governing Law & Jurisdiction. For the purposes of Clauses 17 and 18 of the EU SCCs, the parties agree that the governing law and choice of jurisdiction shall be where the exporter is established. If those laws do not allow for third party rights, the law of Ireland shall apply, and the courts of Ireland will have exclusive jurisdiction.

2.3. To the extent Module 4 of the EU SCCs applies:

2.3.1. paragraphs 1 and 3.2 of this Exhibit 2 shall be modified to reflect that the exporter is a Processor, and the importer is a Controller; and

2.3.2. for the purposes of Clause 8.1(d) of the EU SCCs, at the end of the provision of the processing services the importer shall delete all Personal Data and shall certify to the exporter that it has done so, if requested to provide such certification by the exporter in writing.

3. Processing Particulars for the EU sccs

The Parties

3.1. Exporter (Controller) The Client

3.2. Importer (Processor) Restrata

Description Of Data Processing

3.3. Categories of data subjects: As set out at Clause 5 of Exhibit A.

3.4. Categories of personal data transferred: As set out at Clause 5 of Exhibit A.

3.5. Sensitive data transferred: As set out at Clause 5 of Exhibit A – live location data.

3.6. Frequency of the transfer: Continuous.

3.7. Nature of the processing: As set out at Clause 2 of Exhibit A.

3.8. Purpose of the processing: As set out at Clause 3 of Exhibit A.

3.9. Duration of the processing: As set out at Clause 3 of Exhibit A.

3.10. Sub-Processor Transfers: As set out at Clause 10 of Schedule 5.

3.11. Competent Supervisory Authority: As set out at paragraph 1.4.

3.12. Technical and Organisational Measures: As set out at Clause 6 of Exhibit 1.

Exhibit C

 UK Addendum

1. Parties

As set out in Exhibit 2.

2. Selected SCCs, Modules and Clauses

2.1. Module 2 and Module 4 of the EU SCCs and no other optional clauses unless explicitly specified, and as amended by the clarifications in Exhibit 2, paragraph 2, but subject to any further amendments detailed in this Exhibit 3.

2.2. Personal data received from the importer is not combined with personal data collected by the exporter.

3. Appendix Information

The processing details required by the UK Addendum are as set out in Exhibit 2, paragraph  3.   

4. Termination of the UK Addendum

In the event the template UK Addendum issued by the Information Commissioner's Office and laid before Parliament in accordance with s119A of the DPA 2018 on 2 February 2022, as it is revised under Section ‎18 is amended, either party may terminate this Exhibit 3 on written notice to the other in accordance with Table 4 and paragraph 19 of the UK Addendum and replace it with a mutually acceptable alternative.

Section 5

TEMPLATE

CHANGE ORDER NO. [X]

RESTRATA:

CLIENT:

[INSERT CLIENT NAME]

CONTRACT TITLE:

SAAS Agreement

DATE OF CHANGE ORDER:

[INSERT DATE]

CONTRACT REF NO:

[INSERT REF NO]

CHANGE ORDER NO:

[INSERT APPLICATION NO]

ORIGINAL TERM:

[INSERT ORIGINAL PERIOD]

REVISED TERM:

[INSERT APPLICABLE PERIOD]

The Parties hereby agree to incorporate the following into the above referenced Agreement:

[insert relevant changes e.g. changes to terms of the Agreement or Agreement extension periods].

All other terms contained within the Agreement remain as agreed between the Parties in the Agreement.

This Change Order may be executed in any number of counterparts, each of which is an original and all of which together evidence the same agreement. Defined terms used in this Change Order shall have the meaning given to them in the Agreement. This Change Order will not come into effect unless and until each Party has executed at least one counterpart.

ACCEPTANCE SIGN-OFF

The Parties have indicated their acceptance of this Change Order which shall be governed by any Special Terms and Conditions stated above and the General Terms of Business of the SAAS Agreement (Ref No. [INSERT REF NO])).

RESTRATA                                                                               CLIENT:

Signature                                                                               Signature

Name:                                                                                     Name:

Title:                                                                                        Title:

Date:                                                                                       Date: 

Section 6

Service Levels and Credits

1. Availability of the Services

1.1. Restrata shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week and will endeavour to achieve a 99.5% uptime which is calculated in accordance with paragraph 2.1 ("Uptime Commitment").:

1. Calculation

2.1. Subject to the exclusions set out below, Service Credits will be provided as follows where the Client has reported that availability has fallen below the Uptime Commitment and Restrata, acting reasonably, has confirmed that the Uptime Commitment has not been met over the course of a calendar month:

Service Credit

(% Software licence fees for the month in which the Uptime was not achieved)

Actual Monthly Uptime

10%

Actual Monthly uptime between 99.5% - 99%

20%

Actual Monthly uptime between 99.0% - 95%

40%

Actual Monthly uptime less than 95%

2.2. Monthly Uptime % is calculated as follows:
[(total - nonexcluded - excluded / total - excluded) x 100]

                  Where:

• total means the total number of minutes in the calendar month.

• nonexcluded means the total number of minutes in the calendar month where the Software is Unavailable excluding non-availability of the Software due to or in connection with Scheduled Maintenance or any of the Exceptions. For the purposes of this Section 6 "Unavailable" means a period during which no Authorised User or Authorised Profile is able to log into the Software, except due to or in connection with any Scheduled Maintenance or any of the Exclusions; and

• excluded means the total number of minutes in the calendar month where the Software is Unavailable due to or in connection with Scheduled Maintenance or any of the Exceptions.

2.3. No Service Credit will be provided to the Client where the Client has failed to request the Service Credit within thirty (30) days of receipt of confirmation by Restrata that the Uptime Commitment was not met.

3. Claims

3.1. In order for Restrata to consider a claim for a Service Credit, the Client must submit such claim in writing to Restrata in accordance with paragraph 25 of Section 3, which written claim must detail all information reasonably necessary for Restrata to validate the claim, including but not limited to: (i) a detailed description of the relevant incident and the time and duration thereof (taking account of all information reasonable available to the Client); (ii) the number and location(s) of affected Authorised Users and Authorised Profiles (if applicable); and (iii) descriptions of the Client's attempts to resolve the incident at the time of occurrence.

3.2. Restrata must receive such claim by no later than the end of the calendar month following the month in which the incident occurred. For example, if the incident occurred on February 15th, Restrata must receive the claim and all required information by March 31st.

3.3. Notwithstanding anything to the contrary in this SLA or the Agreement, the Client will not be entitled to any Service Credit where: (a) the Client has failed to provide the information specified in paragraph 3.1 above; (b) the relevant claim for such Service Credit has not been received by Restrata within the timeframes specified in paragraph 3.2 above; or (c) the Client was in breach of the Agreement or the relevant Order at the time of the relevant Incident or in the period of three (3) consecutive months expiring on the date of such Incident.

3.4. Restrata will evaluate all information reasonably available to Restrata and make a determination of whether the Client is entitled to a Service Credit pursuant to such claim. Restrata will use commercially reasonable efforts to process such claims during the subsequent month and within thirty (30) days of receipt.

4. Service Credits

4.1. If Restrata determines that Client is entitled to a Service Credit pursuant to paragraph 3 above, Restrata will apply the Service Credit to Client as set forth in this paragraph 4. Any Service Credits awarded pursuant to this SLA will be applied towards the Fees payable by Client in relation to any renewal (including auto-renewal) of this Agreement. If Client elects not to renew the Agreement or the Agreement terminates before such renewal for whatever reason, the Service Credits will immediately expire and be deemed invalid and forfeited upon such expiration or termination, and in no circumstances (save as expressly set out herein and in the Agreement) will any period of Unavailability entitle Client to any monetary payment or refund, including without limitation as a consequence of the termination of the Agreement. The applicable values are set out in the table at paragraph 2

4.2. Service Credits are the Client's sole and exclusive remedy for any failure to meet the Uptime Commitment under this Agreement. The Client may not offset or withhold unilaterally payment for any performance or availability issues. Service Credits are not redeemable for cash.

4.3. Service Credits only apply to Fees paid where the service level has not been met. The Service Credits awarded with respect to any billing month will not, under any circumstances, exceed the Fees applicable to such billing month.

5. Maintenance

5.1. Restrata reserves the right to schedule downtime for routine maintenance of the Software and will use commercially reasonable efforts to provide the Client with such notice as is reasonable in the circumstances.

5.2. Restrata reserves the right to perform emergency maintenance services at any time and without prior notice to the Client (which the Client accepts may result in the Software being unavailable), provided that Restrata will use commercially reasonable efforts to provide prior notification thereof to the Client. For the sake of clarity, emergency maintenance will not be considered an Exclusion.

6. Previews, Proof-of-Concepts and Trials

6.1. Previews, proof-of-concepts and trials ARE PROVIDED "AS IS", "WITH ALL FAULTS," AND "AS AVAILABLE" as described herein. The service levels and Service Credits set forth in this Schedule do not apply to previews, proof-of-concepts or trials. Restrata may change or discontinue previews at any time without notice. Restrata may also choose not to make a preview generally commercially available. The service levels in this Section do not apply to any pre-production development, testing or other similar environments.

7. Exclusions

7.1. Exclusions to the monthly uptime percentage (together the "Exclusions"):

i. in which Restrata are performing scheduled maintenance;

ii. that result from termination as described in the Agreement;

iii. that result from suspension due to overdue payments;

iv. unscheduled maintenance performed on a day which is not a Business Day or between the hours of 6pm and 8am on a Business Day, provided that Restrata has used reasonable endeavours to give the Client at least 4 hours' notice in advance;

v. caused by factors outside of Restrata’s reasonable control, including any Force Majeure Event or internet access or related problems;

vi. that result from any actions or inactions of the Client or any third party on behalf of the Client;

vii. that result from Client’s equipment, software or other technology and/or third-party equipment, software or other technology, contracted by the Client or provided by a third party which is not Restrata;

viii. caused during any trial, pilot, evaluation, beta testing, pre-release or preview of the Software;

ix. caused by Client’s use of the Software in a manner inconsistent with the documentation or Restrata guidance;

x. caused by Client's failure to adhere to any required configurations, use supported platforms or adherence to the policies of Restrata from time to time regarding acceptable use;

xi. caused by Client's failure to adhere to the Documentation;

xii. caused by Client or its Authorised Users' attempts to perform operations which exceed prescribed quotas or which Restrata reasonably suspects or deems to be abusive;

xiii. caused by delays in SMS messaging providers or facilitators;

xiv. caused by the Client’s use of the Software after Restrata advised the Client to modify its use of the Software;

xv. attributable to acts by persons gaining unauthorized access to or use of the Software due to Client’s failure to maintain and control security and access to the Software;

xvi. attributable to the acts or omissions of the Client or its employees, agents, contractors, or vendors, or anyone gaining access to the Software by means of Client’s credentials or equipment;

xvii. that result from the deployment or execution of applications in the Restrata Platform which, due to excessively complex or erroneous programming of said applications, will not consistently answer user requests successfully, with a predictable term, without errors or any sort, and without behaviors susceptible of consuming excessive resources from the underlying hardware or software, or causing contention in access to said resources.