Terms and Conditions

Important Notice

These Terms and Conditions ("Terms") form part of the agreement between Avasam Limited (trading as Esetrix) ("Esetrix") and the subscribing organisation (the "Company"). Avasam Limited is a company incorporated in England and Wales with company registration number 11556922, whose registered office is at 9 Oliver Business Park, Oliver Road, Park Royal, London, England, NW10 7JB. By executing a Platform Agreement or Order Form that incorporates these Terms, the Company agrees to be bound by the provisions set out below. These Terms should be read alongside the applicable Schedules, which detail the specific commercial, service, and support arrangements agreed between the parties.

Definitions

1.1

In these Terms, the following definitions apply. References to "Esetrix" throughout these Terms refer to Avasam Limited (trading as Esetrix), a company incorporated in England and Wales with company registration number 11556922, whose registered office is at 9 Oliver Business Park, Oliver Road, Park Royal, London, England, NW10 7JB.

"Applicable Laws" means all regional, national and international laws, rules, regulations and standards including those imposed by any governmental or regulatory authority, and all applicable industry standards and standards determined by any self-regulatory body which apply from time to time.

"Esetrix Intellectual Property" means all intellectual property rights in the Platform and all intellectual property rights in any part of the world which are at any time created by or deriving from the Platform, the business of, or owned by Esetrix, developed by Esetrix, or is the existing property of Esetrix. This includes (without limitation) patents, any materials, works, prototypes, inventions, discoveries, techniques, computer programs, source codes, data, technical information, trading business brand names, goodwill, creations, confidential information, know-how, and research effort which is capable of protection. It also covers registered and unregistered trade and service marks, utility models, copyright and neighbouring rights, design rights, moral rights, semiconductor topography rights, database rights, or other intellectual property or similar proprietary rights in any part of the world, whether registered or not, including applications and rights to apply for any of the foregoing.

"Bespoke Change(s)" means any changes, updates, or enhancements to the Platform specifically requested by the Company that are primarily intended for the Company's use or requirements.

"Confidential Information" means the contents of the Agreement and any information that is directly or indirectly disclosed by one Party to the other Party ("the Recipient"), other than information: (a) that was in the public domain at the time of disclosure; (b) that passes into the public domain after disclosure without the Recipient being in breach of any obligation of confidentiality; (c) that is given to the Recipient by a Third Party who is lawfully entitled to disclose it; or (d) that was already known or independently generated by the Recipient prior to its receipt or disclosure.

"Effective Date" means the date specified in the applicable Order Form or Platform Agreement.

"Fees" means the fees detailed in the applicable Schedule or Order Form.

"Good Practice" means exercising the same skill, expertise and judgement, and using facilities and resources of a similar or superior quality, as might be expected from a person who: (a) is skilled and experienced in providing the services in question; and (b) takes all proper and reasonable care and is diligent in performing its obligations.

"Losses" means all direct and reasonable losses, claims, liabilities, costs, charges, expenses and damages that are reasonably foreseeable.

"Platform" means the Esetrix marketplace infrastructure platform, including the Core Modules and any instance configured for the Company's use.

"Proper Standard" means a standard: (a) which would be expected if provided by a skilled and experienced person using appropriate facilities and resources with Good Practice; (b) fit for the purpose for which a Party requires the services in all respects; and (c) in accordance with Applicable Laws.

"Services" means the Platform and includes Updates, interfaces, systems, materials and documentation that Esetrix provides or agrees to provide under the Agreement, and any professional, technical, hosting or support services offered by Esetrix in connection therewith.

"Third Party" means a person who is not a party to the Agreement.

"Updates" means any update, modification, enhancement or other change to the Platform and its Core Modules made by Esetrix as part of providing the Services.

Purpose and Term

2.1

Esetrix has developed the Platform and owns the Platform.

2.2

Esetrix has agreed to licence the Platform to the Company and provide the Services to the Company in accordance with the terms of the Agreement.

2.3

Esetrix shall provide the Services to a Proper Standard in accordance with Good Practice and the Agreement.

2.4

Esetrix may at its sole discretion provide additional services to the Company during the term of the Agreement. The Parties agree that any additional services shall be agreed in writing prior to commencement and shall be governed by the same terms and conditions of the Agreement.

2.5

The Agreement shall be effective from the Effective Date and shall continue until it comes to an end or is terminated in accordance with Clause 13.

Licence and Restrictions on Use

3.1

Subject to payment of the Fees and compliance with the terms of the Agreement, Esetrix grants to the Company a non-transferable, limited licence to use the Platform for the Company's internal business purposes, including through its employees, contractors and authorised users, in connection with the operation of the Company's marketplace and related services, in accordance with the terms of the Agreement.

3.2

The Parties shall be responsible at their own expense for complying with all Applicable Laws and obtaining any applicable licences and consents relating to the use and operation of the Platform as set out in the Agreement.

3.3

The Company shall not:

(a)

translate, adapt, disassemble, reverse engineer, decompile or copy the whole or any part of the Platform, nor arrange or create derivative works based on the Platform;

(b)

make for any purpose, including (without limitation) error correction, any modifications, additions or enhancements to the Platform;

(c)

permit the whole or any part of the Platform to be combined or merged with, or become incorporated in, any other program;

(d)

assign, distribute, licence, sell, charge or otherwise deal in or encumber the Platform; or

(e)

remove or alter any copyright or other proprietary notice on any of the Platform.

Exclusivity

4.1

The Parties acknowledge and agree that the Agreement is non-exclusive, and that neither Party is restricted from entering into similar agreements or arrangements with third parties, including competitors of the other Party, subject to the confidentiality and intellectual property provisions of the Agreement.

The Platform, Services and Changes

5.1

Provided that the Fees are paid in a timely manner, Esetrix shall provide the Platform and the Services during the term of the Agreement to the Company.

5.2

The Parties agree that the Platform shall go live for the benefit of the Company as soon as reasonably practicable following the Effective Date, subject to completion of required dependencies, including design finalisation, system access, and third-party integrations. A target go-live date may be specified in the applicable Schedule or Order Form.

5.3

Esetrix shall provide technical support to the Company in respect of issues pertaining to the Platform in accordance with the applicable service level schedule.

5.4

All Updates shall be included in the Fees. However, any Bespoke Changes shall not be included in the Fees and shall incur additional charges as may be agreed in writing by the Parties.

5.5

Any Bespoke Changes approved (such approval not to be unreasonably withheld) by the Parties shall be paid for in the following manner:

(a)

50% of the agreed fees for the Bespoke Changes shall be paid immediately on confirmation of the Bespoke Change being agreed and technically achievable between Esetrix and the Company;

(b)

30% of the agreed fees for the Bespoke Changes shall be paid immediately on testing sign-off by the Company of the Bespoke Changes; and

(c)

the balance 20% of the agreed fees for the Bespoke Changes shall be paid immediately on going live of the Bespoke Changes.

General Obligations of the Parties

6.1

Each Party agrees that it shall:

(a)

provide details of a designated contact person with whom day-to-day operational matters and escalations can be discussed;

(b)

provide the other Party all necessary and reasonable information, documentation and technical support and assistance as may be required from time to time to enable the other Party to perform its obligations under the Agreement;

(c)

ensure that all information and documentation provided to the other Party is complete and true;

(d)

inform the other Party immediately of anything that may arise which could affect the proper performance of the other Party's obligations under the Agreement;

(e)

not commit any act or omission that is likely to cause disrepute or harm to the other Party; and

(f)

perform any additional services or support as shall be agreed between the Parties from time to time.

6.2

Neither Party shall make any promises, representations, warranties or guarantees on behalf of the other Party without the written consent of the other Party.

Fees and Payment

7.1

The Company has agreed to pay the Fees to Esetrix as set out in the applicable Schedule or Order Form.

7.2

Esetrix will invoice the Company for the Fees, and the Company shall pay the invoice within thirty (30) days of the date of invoice via direct debit in GBP, unless otherwise agreed in writing.

7.3

The invoice shall be generated by Esetrix based on the agreed subscription tier, including any applicable GMV Allowance and/or SKU Allowance as set out in the applicable Schedule. The monthly subscription shall be invoiced monthly to the Company. At the end of each contract year, Esetrix shall review the total GMV generated and/or SKU allowance utilised through the Platform during that year to determine whether the applicable allowance has been exceeded. Where the relevant allowance has been exceeded, Esetrix shall be entitled to invoice the difference between the subscription tier paid and the subscription tier applicable based on actual annual usage.

7.4

The Parties have agreed that any additional integrations and support requested by the Company that are not covered under the applicable Schedule shall be charged separately, and all such fees will be agreed by the Parties in writing.

7.5

All payments owed to Esetrix shall be made without any deductions, set-off or counterclaim.

Disclaimers and Exclusion of Liability

8.1

The Company acknowledges that the Platform is provided "as is" and on an "available" basis.

8.2

Use of the Platform is at the Company's own risk. Except as set out in the Agreement, the Platform is provided without warranties of any kind, whether express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, or course of performance. For the avoidance of doubt, Esetrix shall use all commercially reasonable efforts to maintain the Platform in a secure and stable manner and to operate the Platform in accordance with the performance and availability levels set out in the Agreement, and to ensure that the Platform is free from harmful components.

8.3

The Company acknowledges that:

(a)

Esetrix is not and cannot be aware of the extent of any potential loss or damage to the Company resulting from any failure of the Platform or any failure by Esetrix to discharge its obligations under the Agreement; and

(b)

the Platform cannot be tested in every possible combination and operating environment, and that it is not possible to produce or maintain economically computer programs known to be entirely error-free or which operate in an uninterrupted manner.

8.4

The Company acknowledges and agrees that certain Services provided by Esetrix are dependent upon the support and cooperation of Third Party suppliers and service providers, and that Esetrix shall not be held liable for any losses incurred by the Company for delays caused due to the fault of such Third Party suppliers or service providers out of Esetrix's reasonable control, including any failures, delays or limitations in third-party systems, integrations or services. Esetrix shall keep the Company informed of any delays that may occur in the provision of the Services.

8.5

The Company acknowledges that it is the Company's responsibility to ensure that the features and functions of the Platform meet the Company's requirements.

8.6

In the event of a material failure of the Platform that prevents the core functionality of the Services from operating in a commercially reasonable manner, Esetrix shall use commercially reasonable efforts to investigate and resolve such failure as promptly as practicable and in accordance with the service levels set out in the Agreement. If such material failure continues for a period of thirty (30) consecutive days despite Esetrix's reasonable efforts to remedy the issue, the Company shall have the right to terminate the Agreement upon written notice. For the avoidance of doubt, failures arising from third-party systems or dependencies outside Esetrix's reasonable control shall not constitute a material breach for the purposes of this clause.

8.7

Esetrix will not be liable to remedy any problem arising from or caused by any modification (whether by way of alteration, deletion, addition or otherwise) made to any part of the Platform (including data structure) by persons other than Esetrix without its express prior written consent.

8.8

Esetrix hereby excludes all liability for any Losses suffered by the Company arising under or in connection with use of, or inability to use, the Platform, except to the extent such Losses arise from Esetrix's negligence or wilful misconduct.

8.9

Neither Party will be liable to the other Party in respect of any special, indirect, or consequential loss or damage.

8.10

Neither Party will be liable to the other Party for Losses arising out of any event or events beyond the affected Party's reasonable control.

8.11

Notwithstanding any other provision of the Agreement, Esetrix shall indemnify, defend and hold harmless the Company from and against any Losses arising out of or in connection with: (a) any infringement of the Company's intellectual property rights by Esetrix; (b) any Third Party claim that the Company's authorised use of the Platform infringes or misappropriates that Third Party's intellectual property rights; (c) any breach by Esetrix of Applicable Laws; (d) any breach by Esetrix of its Data Processing Addendum; or (e) any losses arising from material failures of the Platform caused by Esetrix's negligence or wilful misconduct.

8.12

Notwithstanding any other provision of the Agreement, the Company's total liability arising out of or in connection with the Agreement shall not exceed the total Fees paid or payable by the Company under the Agreement.

Intellectual Property

9.1

The Company shall not acquire in any way any title or rights of ownership of any nature to the Esetrix Intellectual Property. The Company acknowledges and agrees that all such interests and rights are and shall remain the exclusive and absolute property of Esetrix.

9.2

The source code to the Platform shall always be owned by Esetrix and the Company shall not at any time claim ownership to the source code of the Platform.

9.3

The intellectual property rights and all other proprietary rights in any materials developed under the Agreement in connection with the Services, the Updates and Bespoke Changes will remain vested in and be the absolute property of Esetrix. The Company will do all such acts and things as Esetrix may reasonably require for the purpose of preserving or perfecting such vesting.

9.4

Notwithstanding any other clause in the Agreement, Esetrix shall not acquire in any way any title or rights of ownership of any nature to the trademarks or intellectual property owned by the Company. Esetrix acknowledges and agrees that all such interests and rights are and shall remain the exclusive and absolute property of the Company.

9.5

The Company shall take all reasonable steps and abide by all instructions from Esetrix to ensure that all Esetrix Intellectual Property is protected. The Company shall notify Esetrix if it becomes aware of any use of the Esetrix Intellectual Property which may infringe the rights of Esetrix.

9.6

The Company shall always, whether during or after termination or expiry of the Agreement, indemnify, keep indemnified and hold Esetrix harmless from and against any and all Losses incurred or suffered by it in relation to any infringement or unauthorised use of the Esetrix Intellectual Property by or on behalf of the Company.

9.7

Ownership of Company Data and IP

9.7.1 Esetrix acknowledges that all materials, data, credentials, and intellectual property provided by the Company, including content uploaded to the Platform by the Company (collectively, "Company Materials"), are and shall remain the exclusive property of the Company.

9.7.2 In the event of a sale, merger, or acquisition of the Company, the Company may transfer its rights to the Company Materials to the new entity, and Esetrix shall, upon prior written notice, recognise such entity as the successor to the Company under the Agreement, provided the new entity agrees in writing to be bound by the terms of the Agreement.

9.7.3 Esetrix shall take all commercially reasonable steps to ensure that all Company Materials are stored securely and protected at all times in accordance with the Agreement.

9.8

No Transfer of Esetrix Intellectual Property

9.8.1 Notwithstanding any provision to the contrary, under no circumstances shall Esetrix be obligated to transfer, assign, or licence its Intellectual Property, including but not limited to the Platform source code, to the Company or any third party.

9.8.2 Any assistance provided by Esetrix under the Agreement, including in relation to Business Continuity or Assignment provisions, shall not include the transfer or disclosure of Esetrix's Intellectual Property.

9.9

The trademark(s) (both registered and unregistered) of the Company shall remain the exclusive property of the Company. On termination of the Agreement, Esetrix shall at no cost to the Company immediately transfer the registration, ownership and/or control of any domain name or subdomain operated by Esetrix on the Company's behalf to the Company.

Warranties

10.1

Each Party represents and warrants to the other Party that:

(a)

the Agreement constitutes a valid and binding agreement of the representing Party, and that execution, delivery and performance of the Agreement by the representing Party are within its corporate power and have been duly authorised by all necessary corporate action;

(b)

by virtue of entering into the Agreement, the representing Party shall not be in breach of any court order, agreement or undertaking which in any way restricts or prohibits the representing Party from entering into the Agreement or performing its obligations under the Agreement; and

(c)

the representing Party is not prohibited by Applicable Laws from entering into the Agreement.

Confidential Information and Announcements

11.1

The Parties agree that each Party shall at all times (both during the term of the Agreement and after its termination) keep confidential, and shall not use (other than strictly for the purposes of the Agreement) and shall not, without the prior written consent of the other Party, disclose to any Third Party any Confidential Information from the other Party.

11.2

Confidential Information furnished in tangible form shall not be duplicated, reproduced or in any way disclosed to any Third Party by a Party except for the purposes of the Agreement.

11.3

The Parties acknowledge that breach of this clause by the recipient party will cause irreparable loss and harm to the disclosing party which cannot be reasonably or adequately compensated by damages in an action in law. Accordingly, the disclosing party will be entitled to injunctive and other equitable relief to prevent or cure any breach or threatened breach.

11.4

All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by each Party from the other Party shall be returned promptly to the other Party on termination of the Agreement, and no copies shall be kept.

11.5

Neither Party has any authority to speak for or make any commitment on behalf of the other, nor shall any such commitment be binding on the other Party. No public comment, announcement or news release shall be made regarding a Party or the proposed arrangements between the Parties without the prior written consent of the other Party.

Data Protection

12.1

The Parties acknowledge that the processing of personal data under the Agreement shall be governed by Esetrix's Data Processing Addendum ("DPA"), available at esetrix.com/dpa, as updated from time to time.

12.2

The Company agrees to be bound by the terms of the DPA as if fully set out in the Agreement.

12.3

In the event of any conflict between the Agreement and the DPA in relation to personal data processing, the DPA shall prevail, except that:

(a)

any material changes that affect the Company's rights or obligations shall require the prior written agreement of both Parties; and

(b)

non-material updates, including those required to reflect changes in applicable law, regulatory requirements, security standards, subprocessors or infrastructure, may be made by Esetrix upon prior written notice to the Company.

Termination and Consequences of Termination

13.1

The Agreement shall commence on the Effective Date and shall continue for the initial term specified in the applicable Schedule or Order Form (the "Initial Term"), unless terminated earlier in accordance with this Clause 13.

13.2

Either Party may terminate the Agreement immediately if:

(a)

a Party reasonably believes the other Party to be in breach of any term contained in the Agreement and such breach is not remedied by the other Party within thirty (30) days of notification;

(b)

the other Party ceases, or threatens to cease, to carry on business; or

(c)

the Party purports to assign its rights or obligations under the Agreement.

13.3

Esetrix shall have a right to immediately terminate the Agreement without notice if the Company breaches Clauses 3.3, 9 or 16 (Amendments).

13.4

On termination of the Agreement:

(a)

all payments owed to Esetrix, as at the date of termination, shall be paid for in full by the Company; and

(b)

Esetrix shall have the right to remove the Company's access to the Platform.

13.5

Termination of the Agreement, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.

Business Continuity

14.1

In the unlikely event that Esetrix is unable to continue providing the Services under the Agreement due to insolvency, dissolution, or any other reason, Esetrix shall provide the Company with as much prior written notice as is reasonably practicable, but not less than 90 days where possible.

14.2

Esetrix shall use commercially reasonable efforts to assist the Company in transitioning to an alternative service provider. This assistance shall include providing necessary data exports, documentation, and limited technical support during a transition period of up to 60 days from the date of termination.

14.3

The Company's data stored on the Platform shall remain the property of the Company. Upon termination, Esetrix shall provide the Company with a complete and secure (encrypted and appropriately documented) download of the Company's data in a commonly used electronic form.

14.4

For the avoidance of doubt, nothing in this clause shall require Esetrix to disclose or transfer any of its Intellectual Property, including but not limited to the source code of the Platform, to the Company or any third party.

Data Export

15.1

Upon termination or expiration of the Agreement for any reason, and provided the Company has paid all outstanding Fees, Esetrix shall, within 30 days of such termination or expiration, provide the Company with a complete and secure (encrypted and appropriately documented) copy of all the Company's data stored on the Platform. This data shall be provided in a commonly used, machine-readable electronic format agreed upon by both Parties.

15.2

Esetrix shall ensure that the data provided is in a format that allows the Company to use the data without the need for any proprietary software of Esetrix. The data shall include all relevant information to enable the Company to migrate to an alternative platform if desired.

15.3

Upon the Company's request, Esetrix shall provide reasonable assistance to the Company, at Esetrix's standard rates, to facilitate the migration of the Company's data to another service provider or platform. Such assistance shall be limited to technical guidance and shall not include the transfer of Esetrix's Intellectual Property or confidential information.

15.4

Following the successful transfer of the Company's data, and upon written confirmation from the Company, Esetrix shall securely delete or destroy all copies of the Company's data in its possession, unless retention is required by Applicable Laws.

15.5

The obligations contained in this clause shall survive the termination or expiration of the Agreement.

General Provisions

16.1

Entire Agreement. The Agreement constitutes the entire understanding between the Parties with respect to the subject matter of the Agreement and supersedes all prior agreements, negotiations and discussions between the Parties relating to it.

16.2

Amendments. Save as expressly provided in the Agreement, no amendment or variation of the Agreement shall be effective unless in writing and signed by a duly authorised representative of each of the Parties.

16.3

Assignment. Neither Party shall be entitled to assign, transfer, charge or deal in any other manner with the Agreement or its rights under it or part of it, or purport to do any of the same, nor sub-contract or delegate any or all of its obligations under the Agreement, without the written consent of the other Party.

16.4

Freedom to Contract. The Parties declare that they each have the right, power and authority and have taken all action necessary to execute and deliver, and to exercise their rights and perform their obligations under the Agreement.

16.5

Waiver. The failure of a Party to exercise or enforce any right under the Agreement shall not be deemed to be a waiver of that right, nor operate to bar the exercise or enforcement of it at any time or times thereafter.

16.6

Severability. If any provision of the Agreement is determined to be illegal or unenforceable by any court of competent jurisdiction, it shall be deemed to have been deleted without affecting the remaining provisions.

16.7

Notices. Any notices, documents and correspondence relating to the Agreement shall be sent by e-mail, hand delivery or courier delivery to the addresses set out in the applicable Schedule or Order Form, or such other address as the Parties may from time to time designate by written notice to the other.

16.8

Counterparts. The Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

Governing Law and Jurisdiction

17.1

The Agreement shall be governed by and construed in accordance with the laws of England and Wales.

17.2

The Parties agree to the exclusive jurisdiction of the Courts of England and Wales.

Company

Avasam Limited (trading as Esetrix)

9 Oliver Business Park
Oliver Road, Park Royal
London, NW10 7JB
United Kingdom

Registration

Company No. 11556922
Incorporated in England and Wales

Contact

[email protected]
esetrix.com