These terms and conditions of supply (“Conditions”) govern the supply of services and licensing of software by Bite to Client under each Call-off Contract. These Conditions apply to the exclusion of any other terms that Client seeks to impose, or which are implied by trade, custom, practice or course of dealing, save for any terms expressly set out within the applicable Call-off Contract.

1. BASIS OF CONTRACT

1.1. Each draft Call-off Terms Form prepared by Bite constitutes an invitation to treat by Bite to provide Services and/ or make available the Software. When both Bite and Client have signed the Call-off Terms Form, this shall form a contract subject to the terms of the applicable Call-off Terms Form and these Conditions (“Call-off Contract”). No correspondence or documentation between Client and Bite shall be incorporated into a Call-off Contract unless and to the extent expressly stated in the Call-off Terms Form. A Call-off Contract shall come into existence immediately following signature by both parties (“Contract Date”).

1.2. After the Contract Date, a Call-off Contract may not be terminated except in accordance with its terms.

1.3. Unless expressly stated to the contrary in the relevant Call-off Terms Form (or otherwise agreed in writing by Bite), each Call-off Terms Form is only valid for 30 days from its date of issue.

1.4. If there is an inconsistency between any of the provisions of a Call-off Contract and these Conditions, the following descending order of priority shall apply for the purposes of construction: (i) Agreed Variations to Framework Agreement as set out in the relevant Call-off Contract; (ii) these Conditions; and then (iii) the other Call-off Terms (as defined in the Framework Agreement).

1.5. Each party warrants that: (i) it has full capacity to enter into and perform its obligations under a Call-off Contract; and (ii) each Call-off Contract is executed by a duly authorised representative of that party.

1.6. The warranties set out at paragraph 1.5 above are deemed to be repeated by each party in respect of a Call-off Contract on the applicable Contract Date for the same.

1.7. In consideration for the payment of the Charges, Bite will provide the Services and/ or grant access to any Software (as appropriate) in accordance with a Call-off Contract, from the applicable Start Date.

2. CLIENT OBLIGATIONS

2.1. Client shall:

2.1.1. at all times be responsible for the acts and omissions of the applicable End User(s) and Authorised Users;

2.1.2. provide all necessary co-operation reasonably required in relation to a Call-off Contract;

2.1.3. comply with any and all obligations which are set out in the Call-off Terms Form, including in the applicable Services Specification which are stated to be performed by Client and any other obligations which are apparent or would be ordinarily expected to be complied with by Client in the ordinary course of receipt of similar services;

2.1.4. provide such assistance from Client Personnel as may be reasonably requested by Bite from time to time;

2.1.5. ensure that the terms of each Call-off Contract (including any specification) are complete and accurate;

2.1.6. respond promptly to any request for a decision, guidance, information or instruction which Bite may submit in relation to a Call-off Contract from time to time;

2.1.7. not to do or permit anything to be done that will or may damage the business, reputation, image and/ or good will of Bite;

2.1.8. comply with the Acceptable Use Policies (which Bite may make available from time to time);

2.1.9. only use the Services for lawful purposes and shall not use the Services: (i) in any way that breaches any Applicable Law; (ii) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect; (iii) for the purpose of harming or attempting to harm minors in any way; (iv) to send, knowingly receive, upload, download, use or re-use any material which does not comply with the content standards set out in paragraph 2.2; (v) transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) knowingly transmit any data, send or upload any material that contains a Virus; and (vii) not (and shall not attempt to) probe, scan, penetrate or test the vulnerability of any of Bite’s systems or networks or to breach any of Bite’s security or authentication measures, whether by passive or intrusive techniques, without Bite’ prior written consent;

2.1.10. ensure that there are in place all necessary consents, licences and permissions required to permit Bite to access and use all Client Content and any other items as may be appropriate in connection with each and every Call-off Contract; and

2.1.11. be solely responsible for procuring and maintaining its network connections and telecommunications links necessary to access the Subscription Services.

2.2. The content standards are as follows:

2.2.1. content must: (i) be accurate (where they state facts); (ii) be genuinely held (where they state opinions); and (iii) comply with Applicable Law; and

2.2.2. content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful or otherwise inflammatory; (ii) promote sexually explicit material; (iii) promote violence; (iv) promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; (v) be used to impersonate any person, or to misrepresent your identity or affiliation with any person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that they emanate from Bite, if this is not the case; or (viii) advocate, promote or assist any unlawful act.

2.3. Receipt of any Services and use of any Software by an End User is as a result of the resale of such Services and sublicensing of Software by Client to such End User as permitted under these Conditions. Client shall ensure that each End User is subject to appropriate restrictions and obligations relating to the Services and Software at least equivalent to those set out in these Conditions. The End User shall have no rights to resell or sub-licence any Services or Software.

3. ALL SERVICES

3.1. The terms of this paragraph 3 apply with respect to all Services supplied pursuant to a Call-off Contract.

3.2. During the applicable Service Term, in consideration for the payment of all applicable Charges, Bite shall provide the applicable Services to Client materially in accordance with the Services Specification.

3.3. Bite shall use reasonable endeavours to observe all health and safety and security requirements that apply at Client’s premises and that have been communicated to it in advance of the provision of the Services, provided that it shall not be liable under the Call-off Contract if, as a result of such observation, it is in breach of any of its obligations under the Call-off Contract.

3.4. Bite will use its reasonable endeavours to supply all relevant Services in accordance with any performance metrics set out in the Call-off Terms Form in respect of such Services.

3.5. In respect of the Services, Bite shall use reasonable endeavours to meet any performance dates specified in the Call-off Terms Form/ Services Specification, but any such dates are estimates only and time is not of the essence for the performance of the Services.

3.6. If performance of the Services is delayed at the request of Client, or because of any acts or omissions of Client, the parties may agree revised dates for performance. At its discretion, Bite may apply a reasonable increase to the Charges as a result of such delay.

3.7. Bite shall have the right to make any reasonable changes to the Services which: (i) improve the nature or quality of Services; (ii) are necessary to comply with Applicable Law; (iii) result from a Sourcing Issue; or (iv) do not materially negatively affect the nature or quality of the Services, and Bite shall notify Client (where practicable, in advance) in any such event. Such notification shall include any variations to the Charges which Bite reasonably considers to be necessary in light thereof.

3.8. Bite shall use its reasonable endeavours to comply with the Service Levels from the Service Level Start Date and the consequences for any failure to comply with the Service Levels are set out in paragraph 6.

3.9. Where Service Credits are stated to accrue, subject to the Service Credit Limit, Bite shall automatically credit Client with the applicable Service Credits. Service Credits shall either be shown as a deduction from the amount due from Client to Bite in the next invoice then due to be issued under the Service Call-off Contract, or Bite shall issue a credit note against a previous invoice and the amount for the Service Credits shall be repayable by Bite as a debt within 30 Business Days of issue of the credit note.

3.10. The Service Credits shall be the exclusive financial remedy for Client for each service failure for which a Service Credit has been set, unless:

3.10.1. Client is otherwise entitled to terminate the Call-off Contract (or a part thereof) for a Default by Bite in accordance with these Conditions; or

3.10.2. the failure to perform the relevant Services in accordance with the Service Levels has arisen due to Bite’s theft, gross negligence, fraud, fraudulent misrepresentation or wilful misconduct.

3.11. The parties agree that any such Service Credits have been calculated as, and are, a genuine pre-estimate of the loss likely to be suffered by Client.

3.12. Where there is a material Default on the part of Client, Bite (without limiting its other rights or remedies) may suspend performance (and is relieved from its performance obligations) until Client remedies the same. Client shall be liable for any costs incurred by Bite.

4. PROFESSIONAL SERVICES – ADDITIONAL TERMS

4.1. The terms of this paragraph 4 apply where Bite has agreed under a Call-off Contract to provide any Professional Services.

4.2. Client shall in a timely manner:

4.2.1. provide all Client Content;

4.2.2. prepare its premises, equipment and existing systems (or those of its third-party contractors); and

4.2.3. facilitate such access to Client’s premises, equipment and existing systems (or those of its third-party contractors), as may be needed for Bite to perform the Configuration Services.

4.3. Where such Professional Services include configuration:

4.3.1. Bite shall carry out the same in accordance with the specification set out in the Call-off Terms Form and subject the results of such services (“Configuration”) to its standard testing process;

4.3.2. Client shall be deemed to have accepted the Configuration if either: (i) the acceptance testing is certified by Bite to be successful, acting reasonably; (ii) Client fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Call-off Terms Form; or (iii) Client commences operational use of Configuration.

4.4. Where the Professional Services include implementation:

4.4.1. Client shall in a timely manner provide all Client Content as may be needed for Bite to perform the same and subject to the results of such services (“Implementation”) to its standard testing process; and

4.4.2. Client shall be deemed to have accepted the Implementation if either: (i) the acceptance testing is certified by Bite to be successful, acting reasonably; (ii) Client fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Call-off Terms Form; or (iii) Client commences operational use of the Subscription Services.

4.5. Where the Professional Services include training, Client acknowledges and agrees that:

4.5.1. any individual identified in the Call-off Terms Form or otherwise may be replaced at any time with another qualified individual at Bite’s option; and

4.5.2. any materials provided in respect of training are licensed to Client solely for the purposes of the receipt of such Training Services by Client Personnel, unless and to the extent that wider use by other Client Personnel is stated within the Call-off Terms Form.

5.  SUBSCRIPTION SERVICES – ADDITIONAL SUPPLY TERMS

5.1. The terms of this paragraph 5 apply where Client orders a Subscription Service from Bite.

5.2. In relation to Software:

5.2.1. in respect of Remote Apps, “use” of the Software means accessing the Remote Apps from the remote location via the Subscription Hosting Services, solely in accordance with the Documentation;

5.2.2. in respect of Download Apps, “use” of the Software means downloading the same from the applicable Download Store and using the same solely in accordance with the Documentation. Use of Download Apps is also subject to compliance with the Download Store Terms and the Download App Terms; and

5.2.3. Client acknowledges that backup copies of the Software are not required, as the Remote Apps are not locally installed and the Download Apps can only be installed as a result of a download from the relevant Download Store.

5.3. Client’s access to the Subscription Hosting Services shall be limited to the Authorised Users who are licensed to use the applicable Software.

5.4. Client shall ensure that each Authorised User keeps a secure password for its use of the Software, that such password is changed no less frequently than monthly and that each Authorised User keeps its password confidential.

5.5. Authorised Users shall not store, distribute or transmit any Virus, or any material through the Subscription Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.

5.6. Except as expressly licensed, neither Client nor any End User has any right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Subscription Hosting Services (or any of the Software) in order to build a product or service which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.

5.7. Bite shall:

5.7.1. with effect from the Service Level Start Date, use its reasonable endeavours to comply with the Uptime Service Level; and

5.7.2. endeavour to keep any interruptions to the Subscription Hosting Services to a minimum.

5.8. In the event of a failure by Bite to comply with its obligations relating to the Subscription Services, Bite will use all reasonable endeavours to correct the same promptly, or provide Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Client’s sole and exclusive remedy for any breach of this paragraph subject to paragraph 15.6. The obligations in this paragraph shall not apply to the extent any failure is caused by a Force Majeure Event or any Client Default.

5.9. Bite does not warrant that:

5.9.1. Client’s (or End User(s)’) use of the Subscription Services will be uninterrupted or error-free; or

5.9.2. Client’s (or End User(s)’) access to Client Data will be uninterrupted or error-free.

5.10. Bite shall use its reasonable endeavours to ensure the Subscription Services are available in accordance with the Service Levels and the consequences for any failure to comply with applicable Service Levels are set out in paragraph 6.

5.11. The following shall not reduce Availability: (i) availability of Client’s own internet access, as Bite is not responsible for this; (ii) Permitted Subscription Maintenance Events; (iii) Client (or End User) caused or third party caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by Bite to perform the Subscription Services or where they are caused by Bite’s failure to apply adequate and Good Industry Practice levels of cyber security measures); and (iv) outages or disruptions attributable in whole or in part to Force Majeure Events.

5.12. Uptime Service Level calculation shall be carried out by Bite and is based on the monthly average percentage Availability, calculated at the end of each calendar month as the total actual minutes of Availability divided by total possible uptime minutes in the month.

5.13. If there is a Subscription Service Delivery Failure in a month, Bite shall apply the applicable Service Credits to Client’s account, subject to: (i) Client requesting it within 30 days of the service-affecting event(s); and (ii) Service Credits in a given month being limited to the Service Credit Limit.

5.14. Bite reserves the right to make any reasonable modifications to the Subscription Services in any manner which: (i) is necessary to comply with any Applicable Law or safety requirement; (ii) results from a Sourcing Issue; or (iii) does not materially affect the nature or quality of the same, and Bite shall notify Client (where practicable, in advance) in any such event. Any other modification required by Bite shall be implemented pursuant to the Change Procedure.

5.15. Bite shall back-up all Client Content and Client Data securely and regularly and using Good Industry Practice.

6. SUBSCRIPTION SERVICES – SERVICE LEVELS & SERVICE CREDITS  

Availability

6.1. The Subscription Services shall be Available for 7 days a week, 52 weeks a year. This excludes planned downtime and Bite reserves the time of 4am- 5am GMT every week on Thursdays (“Planned Downtime Window”) to take the site down for maintenance. If Bite requires it, additional planned downtime outside the Planned Downtime Window can be undertaken and Bite will provide notice no less than 2 weeks in advance of the date if this is required.

6.2. If Bite fails to provide the Subscription Services in accordance with the Availability Level, measured over three consecutive months, Bite shall incur Service Credits as set out below:

*“Availability Level” applies to an average Availability over 3 consecutive months.

6.3. Bite utilises the Microsoft Azure cloud infrastructure and the site Availability is subject to the Availability of services within the Microsoft Azure platform. Availability excludes any Availability failures due to failures in the Microsoft Azure platform. The Data sub-processor is Microsoft for Cloud based services via the Azure platform.

Support

6.4. The platform is supported for 24 hours a day, 7 days a week, 365 days a year. The support applies to Client (fund management) teams and not to investor relations and investor support (End Users). Client will be responsible for first line investor support.

6.5. Client must provide contact details for the following roles:

6.6. Client may raise bugs or issues based on the operation of the platform. This will be done through the prescribed channels as defined on the company website.

6.7. The categorisation of the severity of bugs will be at the sole discretion of Bite. Bugs will be handled according to the following Service Level agreement:

7. SUBSCRIPTION SERVICES – ACCEPTANCE CRITERIA AND PROCESS

Acceptance criteria and process

Client will test the Configuration and Implementation within 5 weeks of being provided with the implemented and configured system and will determine whether it meets the following acceptance criteria (i.e. that it has the following functionality or provides the following features (as relevant)). If Client reasonably concludes that it does not meet such criteria, it will notify Bite, who will take reasonable steps to reconfigure and reimplement the system accordingly and re-submit it for testing.

Investor Portal

8. SUBSCRIPTION SERVICES – SOFTWARE LICENSING

8.1. The terms of this paragraph 8 apply where Client orders a Subscription Service from Bite.

8.2. In consideration for the payment of all applicable Charges, Bite hereby grants to Client a non-exclusive licence for the Term to use the Software to the extent necessary to receive the Subscription Services.

8.3. Use of the Software shall be restricted to: (i) the licence type, quantity, use and purpose restrictions set out in the Call-off Terms Form for the same; (ii) object code form; (iii) the normal business purposes of the End User(s) only; and (iv) employees and authorised contractors of the End User(s).

8.4. During the Term, the Software will perform in accordance with the Software Specification/ Documentation in all material respects. Client’s sole remedy for breach of the obligation under this paragraph 8.4 shall be the correction of the Defect by Bite within a reasonable time from notification by Client of the same subject to paragraph 15.6.

8.5. Bite may provide to Client, from time to time, copies of the Documentation. Such Documentation may be supplied in electronic form. Client may make such further copies of the Documentation as are reasonably necessary for the use of Software and for training Authorised Users in use of the Software. Client shall ensure that all of Bite’s proprietary notices are reproduced in any such copy.

8.6. Notwithstanding any other provision, Bite specifically denies any implied or express representation that the Software will:

8.6.1. be fit to operate in conjunction with any hardware items or software products other than with those that are identified in the Call-off Terms Form (or in the relevant Documentation) as being compatible with the Software; or

8.6.2. operate uninterrupted or error-free.

8.7. Client/ Authorised Users may not use the Software other than as specified in these Conditions without the prior written consent of Bite, and Client acknowledges that additional fees may be payable on any change of use approved by Bite.

8.8. Except as expressly licensed, neither Client nor any Authorised User has the right (and shall not permit any third party) to copy, adapt, reverse engineer, access all or any part of the Software in order to develop software which competes with the same, decompile, disassemble, modify, adapt or make error corrections to the same in whole or in part.

8.9. Client shall not: (i) sub-license, assign or novate the benefit or burden of the licence to the Software in whole or in part; (ii) allow the Software to become the subject of any charge, lien or encumbrance; or (iii) deal in any other manner with any or all of its rights and obligations under the Call-off Contract, without the prior written consent of Bite.

8.10. Client shall: (i) ensure that the use of the Software does not exceed the licence restrictions referred to in paragraph 8.3; (ii) notify Bite as soon as it becomes aware of any unauthorised use of the Software by any person; (iii) pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which Bite would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for under these Conditions, from such date to the date of payment.

8.11. Client shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Bite promptly of any such unauthorised access or use.

8.12. Client acknowledges that the Software may include Open-Source Software.

9. BITE WEALTH UNIVERSE

Client will have the option to be included in Bite Wealth Universe (“BWU”). If Client opts to be included in BWU:

9.1. Client undertakes and warrants that it has completed its own regulatory assessment of its authority and ability, and has all requisite permissions (both legal and regulatory), to be included in BWU;

9.2. Client undertakes and warrants that any material it provides for inclusion in BWU (the “Material”): (i) shall be purely factual in nature and will not be of a promotional nature and (ii) shall not be such that it is intended to invite or induce anyone who may access the Material to engage in investment activity; and

9.3. Client acknowledges that:

9.3.1. notwithstanding paragraph 9.1 above, Bite may decide at any time, in its absolute discretion, that Material is not (in whole or in part) suitable for inclusion in BWU and whether or not the Material (in whole or in part) will be included in BWU; and

9.3.2. notwithstanding any other provision in these Conditions or elsewhere, it consents to the Material and any Client Data being included in BWU.

10. CHARGES

10.1. The price for Services is the price set out in the Call-off Terms Form. Where no price is quoted, it shall be:

10.1.1. the price set out in Bite’s published price list as at the Contract Date for performance of the relevant Services (which may be set out on Bite’s website or elsewhere); or

10.1.2. where applicable in respect of Services, on a time and materials basis in accordance with the Standard Rates.

10.2. Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall (to the extent reasonable and properly incurred) become payable upon production of mileage claims/ appropriate receipts.

10.3. Bite reserves the right to increase the Charges from time to time. Bite will give Client written notice of any such increase 30 days before applying the increase. Should Client object to such increase, Client may terminate the Call-off Contract within such 30 day notice period on written notice to Bite.

10.4. If it is reasonably apparent that any of the pricing in the Call-off Terms Form is incorrect (“Obvious Pricing Error”), Client must notify Bite of the same. When Bite becomes aware of an Obvious Pricing Error, it shall promptly notify Client of the error together with the correct price (“Correct Price”). Following notification of the Correct Price, such price shall apply in place of the Obvious Pricing Error. If Client objects to the Correct Price, it may terminate the relevant Call-off Contract on written notice to Bite.

10.5. Where a failure of Client to comply with its obligations in the Call-off Contract (including those set out in these terms and conditions as well as the Call-off Terms Form) results in additional costs for Bite and/ or wasted time, Bite may charge Client for the same on a time and materials basis. In order to calculate the same, Bite’s Standard Rates shall apply unless other rates are specified in the Call-off Terms Form.

10.6. Unless otherwise specified in the applicable Call-off Contract, Bite will invoice Client (using the Client invoicing details set out in the Call-off Contract) as described in the table below:

10.7. If Services are not performed as a result of the acts or omissions of Client, Bite may invoice the same on the date upon which performance was attempted.

10.8. Client shall pay each invoice which is properly due and submitted to it by Bite within 30 days of invoice date to a bank account nominated in writing by Bite. If Bite has not received a payment which is validly due within such period, and without prejudice to any other rights and remedies it may have (but subject to any Applicable Law in force at the time which restrict or exclude the same), Bite may charge interest on a daily basis on such due amounts at an annual rate equal to 8% over the then current Base Interest Rate from time to time, commencing on the Due Date and continuing until fully paid, whether before or after judgment. Such interest shall accrue on a daily basis and be compounded quarterly.

10.9. In respect of any Professional Services ordered by Client, a minimum cancellation period of 30 days is required, otherwise the agreed fee will be charged in full.

10.10. All Charges stated or referred to in a Call-off Contract are exclusive of value added tax or other sales taxes, which shall be added to Bite’s invoice(s) at the appropriate rate.

10.11. Bite may, without limiting its other rights or remedies, set off any amount owing to it by Client or any Affiliate against any amount payable by Bite to Client.

11. INTELLECTUAL PROPERTY

11.1. Bite warrants that it has, and will continue to have, all necessary rights in and to any and all Intellectual Property Rights that it purports to grant to Client pursuant to a Call-off Contract. Client warrants to Bite that Bite’s possession and use in accordance with these Conditions of any materials (including third-party materials supplied by Client to Bite) shall not cause Bite to infringe the rights, including any Intellectual Property Rights, of any third party.

11.2. Client acknowledges and agrees that Bite and/ or its licensors own all Intellectual Property Rights in the Services and the Software.

11.3. Except as expressly stated herein, these Conditions do not grant Client any Intellectual Property Rights or any other rights or licences to, in or in respect of the Services or Software.

11.4. Bite acknowledges and agrees that Client and/ or its licensors own all Intellectual Property Rights in Client Content and Client Data. Except as expressly stated herein or as is necessary to perform Bite’s obligations under a Call-off Contract, these Conditions do not grant Bite any Intellectual Property Rights or any other rights or licences to or in respect of any Client Content or Client Data.

11.5. Subject to paragraph 11.6, nothing in these Conditions shall be construed so as to prevent Bite from using in the furtherance of its own business general know-how or expertise gained in its performance of a Call-off Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of paragraph 12 or infringement of any Intellectual Property Rights.

11.6. Bite may not use any of the Client Data or Client Content for any purpose other than to carry out the Services or if Client opts to be included in BWU pursuant to paragraph 9, except that Bite may make use of anonymised and aggregated data derived from the Client Data and Client Content (and shall include no references to Client, its brand or the brand of any of its Affiliates and shall be used and presented in such a way that it is not possible for any third party to discern or extrapolate any reference to Client, its brand, its Affiliates and/ or End Users) for any purpose, including: (i) the promotion and marketing of Bite’s Services and/ or Software; and/ or (ii) data analytics.

12. CONFIDENTIALITY

12.1. Each party may be given access to Confidential Information from the other party, any member of its Group or any of its Affiliates in order to perform its obligations under a Call-off Contract. A party’s Confidential Information shall not include information that:

12.1.1. is or becomes publicly known other than through any act or omission of the receiving party;

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

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

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

12.2. Subject to paragraph 10.4 below, each party shall hold the other’s Confidential Information (including any such information originating from any of its Affiliates or any other member of its Group) in confidence and, unless required by law, 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 performance of its obligations under a Call-off Contract.

12.3. 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 employees or agents in violation of these Conditions, save to other members of its Group, its Affiliates, or its professional advisors.

12.4. 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 paragraph 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

12.5. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any unconnected third party except to the extent caused by: (i) the receiving party’s acts, omissions or negligence (or the actions, omission or negligence of other members of its Group and its Affiliates) which are not in accordance with these Conditions.

12.6. Bite acknowledges that any Client Data which it is given access to is the Confidential Information of Client.

12.7. If Client opts to be included in BWU pursuant to paragraph 9, Bite may include the Material and any Client Data in BWU.

12.8. Bite may publicise its involvement with Client for its own marketing purposes (including use of Client’s logo), and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this paragraph 12.

12.9. Client may publicise its involvement with Bite for its own marketing purposes (including use of Bite’s logo), and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this paragraph 12. If Client wishes to publicise its involvement with Bite for any other purposes, it must first obtain Bite’s consent.

13. DATA PROTECTION ARRANGEMENTS 

13.1. The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Legislation. However, the parties anticipate that Client shall act as a Controller and Bite shall act as a Processor and in any such case:

13.1.1. Bite shall be a Controller where it is collecting and using Transferred Personal Data in relation to the management of its Client accounts; and

13.1.2. Bite shall be a Processor where it is Processing Transferred Personal Data in relation to the Data Processing Particulars in connection with performing its obligations under a Call-off Contract.

13.2. Bite shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all Transferred Personal Data that is collected, used, disclosed, stored and/ or Processed by it in connection with a Call-off Contract.

13.3. Client shall comply with the provisions of the Data Protection Legislation in relation to its collection, use, disclosure and/ or processing of Transferred Personal Data (including, without limitation, the provision of fair processing information to data subjects and the obtaining of any necessary valid consents from same) and shall ensure that:

13.3.1. where it discloses Transferred Personal Data to Bite, it has obtained the prior consent of all relevant individuals for Bite to collect, use, disclose, store and/ or process such Transferred Personal Data for the relevant purpose for which Client made the disclosure and, upon request by Bite, provide evidence in writing of the prior consent it has obtained where such Transferred Personal Data is sensitive information;

13.3.2. the Transferred Personal Data it provides to Bite shall be accurate; and

13.3.3. the instructions it provides to Bite shall be lawful in accordance with the Data Protection Legislation.

Bite shall be permitted to appoint sub-contractors, and to disclose Transferred Personal Data to them for Processing in accordance with the relevant Call-off Contract and paragraph 14.3 below, provided always that the sub-contractor’s right to Process the Transferred Personal Data terminates automatically on expiry or termination (for whatever reason) of the relevant Call-off Contract for which the sub-contractor was engaged.

14. DATA PROCESSING OBLIGATIONS

Bite acting as a Processor

14.1. To the extent that Bite is acting as a Processor for and on behalf of Client, it shall:

14.1.1. process Transferred Personal Data for and on behalf of Client for the purposes of performing its obligations under a Call-off Contract, and only in accordance with the terms of that Call-off Contract and any documented instructions from Client or as otherwise required by the Data Protection Legislation; in such a case, Bite shall inform Client of that requirement before processing, unless prohibited on important grounds of public interest;

14.1.2. notify Client immediately (and in any event within 24 hours of becoming aware of the same) if it believes (or ought reasonably to have been aware) that any of Client’s written instructions infringe the Data Protection Legislation;

14.1.3. implement and maintain appropriate technical and organisational security measures which are sufficient to comply with at least the obligations imposed on Client by the Security Requirements;

14.1.4. take all reasonable steps to ensure the reliability and integrity of any Supplier Personnel who shall have access to the Transferred Personal Data;

14.1.5. ensure that access to the Transferred Personal Data is restricted to only those members of Bite’s Personnel who require it in order to discharge Bite’s obligations under a Call-off Contract;

14.1.6. notify Client promptly (and in any event within 2 Business Days) following its receipt of any Subject Access Request or correspondence from the UK Information Commissioner’s Office or any other European data protection authority, and together with such notices, shall provide a copy of such Subject Access Request or correspondence and reasonable details of the circumstances giving rise to it;

14.1.7. with respect to a Subject Access Request, not disclose any Transferred Personal Data in response without the express written authorisation of Client;

14.1.8. provide Client with reasonable assistance in the preparation of data protection impact assessments and (where applicable) any consultations with the UK Information Commissioner’s Office or any other European data protection authority, taking into account the nature of the processing and the information available to Bite; and

14.1.9. provide reasonable information to Client in relation to audits of Bite’s compliance with paragraphs 14.1 to 14.6 above. In relation to such audits, Client shall:

14.1.9.1. provide Bite with reasonable written notice of such audits;

14.1.9.2. not conduct such audits more frequently than once in each 12 month period; and

14.1.9.3. conduct such audits in a manner that is not unduly disruptive of Bite’s business operations

14.2. Where Bite becomes aware (or reasonably should have become aware) of an actual or suspected Personal Data Breach, it shall:

14.2.1. notify Client without undue delay, including details of how the breach occurred and what Transferred Personal Data may have been compromised;

14.2.2. implement any measures necessary to restore the security of compromised Transferred Personal Data; and

14.2.3. assist Client to make any notifications to the UK Information Commissioner’s Office or any equivalent authorities in the Contracting Location and affected Data Subjects.

14.3. Client is deemed to authorise Bite’s appointment of the sub-processors listed in Schedule 1 to the Call-Off Contract. Bite shall make details of any changes to the sub-processors available to Client. Client shall have the right to object to any changes to the list of sub-processors. Where Client has not objected to the change within 10 Business Days of Bite making the details of such change available, Client shall be deemed to have authorised the change. Where Bite appoints a sub-processor, it shall ensure that the agreement with such sub-processor imposes substantially the same obligations on the sub-processor as set out in paragraphs 14.1 to 14.6 above. Bite shall remain responsible for the performance of any sub-processor that it appoints.

14.4. Bite may transfer Transferred Personal Data from the UK or Australia to outside the UK or the EEA or Australia provided that:

14.4.1. the transfer is to a territory which is subject to adequacy regulations under the Data Protection Legislation that the territory provides adequate protection for the privacy rights of individuals;

14.4.2. Bite participates in a valid cross-border transfer mechanism under the Data Protection Legislation; or

14.4.3. in the case of transfers outside Australia, Bite must ensure that the relevant recipient of the Transferred Personal Data complies with applicable Data Protection Legislation.

14.5. Except to the extent required by Applicable Law, upon the termination of a Call-off Contract for any reason, or earlier if instructed in writing by Client to do so, Bite shall cease Processing all Transferred Personal Data and return and/ or permanently and securely destroy so that it is no longer retrievable (as directed in writing by Client) all Transferred Personal Data and all copies in its possession or control (and it shall provide Client with a certificate signed by a duly authorised representative confirming it has done so). Where Client makes any such request prior to the termination of a Call-off Contract, and it serves to hinder or prevent Bite’s obligations thereunder, the Call-off Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.

14.6. Data Processing Particulars:

Bite acting as a Controller

14.7. To the extent that Bite is acting as a Controller pursuant to paragraph 13.1.1, it shall:

14.7.1. provide Client with all assistance reasonably requested by it to enable it to comply with its obligations under the Data Protection Legislation (including responding to data subjects exercising their rights under the Data Protection Legislation in relation to the processing of Transferred Personal Data). If Bite reasonably concludes that the provision of its assistance to Client in any 12 month period under this paragraph 14 shall cost greater than the Financial Cap, as soon as reasonably practicable from the date of Client’s request for assistance, Bite shall provide Client with a quote acting reasonably and in good faith (Client is under no obligation to accept such quote). Client shall consider Bite’s quote and if Client decides to accept Bite’s quote in respect of the assistance requested pursuant to this paragraph, only then shall Client be responsible to pay such sums to Bite;

14.7.2. use all reasonable endeavours to implement appropriate technical and organisational measures to: (i) ensure a level of security appropriate to the nature of the Transferred Personal Data, noting that certain data is special category data; (ii) prevent any unauthorised or unlawful processing of Transferred Personal Data; (iii) protect Transferred Personal Data against accidental loss, destruction or damage and (iv) identify Personal Data Breaches in a timely manner;

14.7.3. ensure that any authorised personnel that need to have access to Transferred Personal Data are given access to the extent reasonably necessary for such personnel to exercise the rights and perform the obligations pursuant to the Call-off Contract, and that such persons are subject to appropriate confidentiality and data security obligations;

14.7.4. notify Client without undue delay (and in any event within 48 hours) after becoming aware of a Personal Data Breach in connection with the Transferred Personal Data and provide Client with such assistance as is reasonably necessary to mitigate the effects of such personal data breach including in respect of making any notification to the UK Information Commissioner’s Office and/ or a supervisory authority and/ or data subjects; and

14.7.5. process the Transferred Personal Data for no longer than is necessary for the purposes for which the Transferred Personal Data is processed by each party.

15. WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY 

15.1. To the maximum extent permitted by Applicable Law, all representations or warranties (whether written or oral, express or implied by statute, common law or otherwise) apart from those expressly set out in these Conditions are hereby excluded. In particular, but without prejudice to the generality of the foregoing, Bite makes no representation or gives any warranty (whether express or implied, statutory and/ or otherwise), and will have no liability, regarding the fitness of the Services or Software for any purpose, whether or not such purpose is disclosed to Bite.

15.2. Client hereby indemnifies Bite from and against any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Bite in connection with:

15.2.1. Bite’s storage/ handling of any Client Data and Client’s/ Authorised User’s use of the same;

15.2.2. any failure of Client/ End User(s) to obtain appropriate licences and/ or consents in accordance with its obligations under these Conditions or any subsequent revocation or non-renewal of any such licence and/ or permit;

15.2.3. any failure of Client/ End User(s) to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;

15.2.4. any use of the Services or the Software by Client/ Authorised Users other than as envisaged under the Call-off Contract;

15.2.5. failure of an Authorised User to comply with the Download Store Terms or the Download App Terms; and

15.2.6. any other Client Default.

15.3. Bite shall defend Client, its officers, directors and employees against any claim that the Software or Services infringe any patent in the Contracting Location, effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Client for any amounts finally awarded against Client in judgment or settlement of such claims, provided that:

15.3.1. Bite is given prompt notice of any such claim;

15.3.2. the claim does not result from Client’s/ Authorised User(s) failure to comply with these Conditions;

15.3.3. Client and End User(s) provide reasonable co-operation to Bite in the defence and settlement of such claim (at Bite’s expense, provided such expenses are reasonable and can be evidenced to Bite’s satisfaction); and

15.3.4. Bite is given sole authority to defend or settle the claim.

15.4. In the defence or settlement of any claim, Bite may procure the right for Client to continue using the Software or Services, replace or modify the Software or Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Call-off Contract on 2 Business Days’ notice to Client without any additional liability or obligation to pay liquidated damages or other additional costs to Client. In no event shall Bite, its employees, agents and sub-contractors be liable to Client to the extent that the alleged infringement is based on: (a) a modification of the Software or Services by anyone other than Bite; (b) Client’s use of the Software or Services in a manner contrary to the instructions given to Client by Bite; or (c) Client’s use of the Software or Services after notice of the alleged or actual infringement from Bite or any appropriate authority. The foregoing states Client’s sole and exclusive rights and remedies, and Bite’s (including its employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

15.5. The following provisions set out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other in respect of:

15.5.1. any breach of these Conditions howsoever arising; and

15.5.2. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with a Call-off Contract.

15.6. Nothing in these Conditions shall limit or exclude Bite’s or Client’s liability for:

15.6.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;

15.6.2. fraud or fraudulent misrepresentation;

15.6.3. any other liability which cannot be limited or excluded by Applicable Law;

15.6.4. if the Contracting Location is based in The State of Delaware, USA: wilful misconduct; and

15.6.5. if the Contracting Location is based in Asia-Pacific, Australia: warranties or guarantees which by law cannot be excluded or modified, including any consumer guarantees under the Australian Consumer Law. However, in this event, Bite’s liability for a breach of these guarantees can be limited, at Bite’s option, to a resupply of the relevant goods or services or paying for the costs of resupplying the relevant goods or services.

15.7. In the event of a Default by Bite, Bite’s liability in respect of loss or damage to tangible property of Client shall not exceed the Financial Cap.

15.8. Subject to paragraphs 15.5 and 15.6, Bite’s liability in respect of loss or damage under a Call-off Contract in any 12 month period shall not exceed a sum equal to the total Charges paid and payable to Bite by Client under such Call-off Contract during the period of 12 months immediately prior to the event giving rise to the claim, however that liability arises including breach of contract, tort, misrepresentation or breach of statutory duty.

15.9. Client acknowledges that all contractual relationships with the End User are between Client and End User. In no event will Bite be liable to any End Client or Authorised User (whether in contract, tort, negligence or otherwise).

15.10. Subject to paragraph 15.5, in no event will Bite be liable to Client (whether in contract, tort, negligence or otherwise):

15.10.1. for any delay in performance of the Services or any failure to perform the Services that is caused or contributed to by a Force Majeure Event or any Client Default;

15.10.2. for any damage caused by errors or omissions in any Client Content or Client Data;

15.10.3. for any damage caused by Excluded Causes;

15.10.4. for any loss not flowing directly and naturally in the ordinary course of events from its own act or omission;

15.10.5. for any loss of profit, revenue, use, anticipated savings, data, goodwill or opportunity or damage to reputation;

15.10.6. for any indirect, special or consequential loss or damage;

15.10.7. to the extent that any delay in performing or failure to perform Bite’s obligations is due to a failure by Client to perform its own obligations under a Call-off Contract or if delay results from a failure by Client to comply with reasonable requests by Bite for instructions, information or action required by it to perform its obligations within a reasonable time; or

15.10.8. for the consequences of any acts or omissions of Client or Client Personnel, or any End User or Authorised User.

15.10.9. In the event of any loss or damage to Client Content, Client’s sole and exclusive remedy shall be for Bite to use reasonable commercial endeavours to restore the same from its latest back-up (where Bite has contracted to do the same.

15.11. In no event shall Bite be liable for any loss, destruction, alteration or disclosure of Client Content caused by any third party (except those third parties sub-contracted by Bite to perform services related to maintenance and back-up).

16. TERM AND TERMINATION

16.1. Each Call-off Contract shall commence on the Contract Date and continue for the Term, unless terminated in accordance with its terms.

16.2. Without prejudicing any other right or remedy available to it, either party may terminate the relevant Call-off Contract with immediate effect by giving written notice to the other party if:

16.2.1. the other party fails to pay any amount due under the Call-off Contract on the Due Date for payment and remains in default not less than 10 Business Days after being notified in writing to make such payment;

16.2.2. the other party commits a material breach of any other term of the Call-off Contract which breach is irremediable or (if remediable) fails to remedy it within a period of 10 Business Days after being notified in writing to do so (this paragraph 16.2.2 only applies if Service Credits are not applicable); or

16.2.3. the other party repeatedly breaches any of the terms of the Call-off Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms under the Call-off Contract.

16.3. Without prejudicing any other right or remedy available to it, either party may terminate any Call-off Contract immediately should an Insolvency Event of the other party occur.

16.4. Without prejudicing any other right or remedy available to it, Bite may terminate any Call-off Contract with immediate effect by giving written notice to Client if there is a Change of Control of Client.

16.5. Without prejudicing any right to terminate which Bite may have, Bite will be entitled to suspend any Services without notice if:

16.5.1. there is a material Default on the part of Client; or

16.5.2. any of the events set out in paragraphs 16.2, 16.3, 16.4 or 16.8 occur in relation to Client.

16.6. Bite may rely on the suspension to relieve it from the performance of any of its obligations in each case to the extent the suspension prevents or delays the performance by Bite of any of its obligations and Bite shall not be liable for any costs or losses sustained or incurred by Client arising directly or indirectly from any failure or delay by Bite to perform any of its obligations as set out in this paragraph.

16.7. Where Bite acquires the right to terminate or suspend Services under a Call-off Contract pursuant to this paragraph 16, such right shall extend to any other Call-off Contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Call-off Contract under which the right of termination or suspension has arisen.

16.8. Client may terminate the Call-off Contract immediately if there is an Obvious Pricing Error as detailed in paragraph 10.4.

17. CONSEQUENCES OF TERMINATION

17.1. On termination for any reason:

17.1.1. all rights granted to Client under the Call-off Contract shall cease;

17.1.2. Client (and consequently any End User and Authorised Users) shall cease all activities authorised by the Call-off Contract; and

17.1.3. Client shall immediately pay any sums due to Bite (including sums on a time and materials basis for any work in progress) without set off or deduction.

17.2. Provided all sums due to Bite’s Group from Client’s Group have been paid, Bite shall make available to Client a copy of all Client Content and Client Data in a commonly-readable electronic format for a period of no more than 30 days following termination and allow Client to extract such Client Content and Client Data. After such period, Bite may permanently delete all Client Content and Client Data residing on its systems.

18. ASSIGNMENT

18.1. Client may not assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Call-off Contract without the consent of Bite, save in respect of its express right to resell Services and sub-licence Software to End User(s) as expressly set out in the applicable Call-off Terms Form.

18.2. Bite may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under a Call-off Contract without the prior written consent of Client.

18.3. For the avoidance of any doubt, Bite acknowledges and agrees that it is shall at all times remain fully responsible and liable for the acts, omissions or defaults of its sub-contractors as if they were the acts, omissions or defaults of Bite.

18.4. Client agrees that it shall co-operate and undertake all matters at Bite’s cost and expense that are necessary to novate or assign any Call-off Contract or any parts thereof to any third party when requested to do so by Bite.

19. FORCE MAJEURE

19.1. Neither party shall be in breach of a Call-off Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Call-off Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control, including strikes; lock-outs or other industrial disputes (except with respect to that party’s own employees); acts of God; war; riot; civil commotion; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm, failure of utilities (including internet lines) and the remotely hosted Microsoft environment from which the Subscription Service is provided (“Force Majeure Event”).

19.2. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations (and the other party’s corresponding obligations will be similarly extended), provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the relevant contract (together with any other Call-off Contract between the parties) by giving 10 Business Days’ written notice to the other party.

20. NOTICES

20.1. Any notice given to a party under or in connection with a Call-off Contract shall be in writing and shall be:

20.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

20.1.2. sent by email to the address set out in the Call-off Contract or otherwise.

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

20.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

20.2.2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service; and

20.2.3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this paragraph 20.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a Business Day.

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

21. DISPUTE RESOLUTION

If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of a Call-off Contract (a “Dispute”) then the parties shall follow the procedure set out in this paragraph 21:

21.1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute; and

21.2. if the parties are for any reason unable to resolve the Dispute within 20 Business Days from service of the Dispute Notice, the parties will attempt to settle it by the relevant Dispute Resolution Procedure.

22. CHANGE PROCEDURE

22.1. Where a party identifies a need to change a Call-off Contract, they may at any time request such a change.

22.2. The party proposing the change shall notify the other party in writing specifying in as much detail as is reasonably practicable the nature of the requested change (“Change Request”).

22.3. Where Client has requested the change, Bite shall, as soon as reasonably practicable, provide a written estimate to Client of:

22.3.1. the likely time required to implement the change;

22.3.2. any necessary variations to the Charges arising from the change;

22.3.3. any necessary variations to the resources of either party arising from the change; and

22.3.4. any other impact of the change on the hardware/ services provided under the Call-off Contract.

23. GENERAL

23.1. A Call-off Contract 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.

23.2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in a Call-off Contract.

23.3. If the party’s Contracting Location is based in England, a natural or legal person who is not a party to the Call-off Contract shall have no rights under the Call-off Contract (Rights of Third Parties) Act 1999 or equivalent legislation anywhere in the world to enforce any of its terms. This paragraph does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act. If the party’s Contracting Location is based in State of Delaware, United State, then no provision of this Agreement is intended to confer upon any person other than the parties hereto any rights or remedies hereunder.

23.4. Except as set out in these Conditions, any amendment, including the introduction of any additional terms and conditions, to the Call-off Contract shall only be binding when agreed in writing and signed by both parties.

23.5. A waiver of any right is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or Default. No failure or delay by a party in exercising any right or remedy under the Call-off Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Call-off Contract are cumulative and do not exclude rights provided by law.

23.6. No delay or omission by Client in exercising any of its rights or remedies under a Call-off Contract or under any Applicable Law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.

23.7. In the event that any provision of a Call-off Contract shall be void or unenforceable by reason of any provision of Applicable Law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Call-off Contract so far as possible.

23.8. Nothing in a Call-off Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of the other party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

23.9. Each party undertakes to the other that it will not, and will procure that its employees will not, in the course of performing its obligations under a Call-off Contract, knowingly engage in any activity which would constitute a breach of Anti-Bribery Laws and that it has in place a compliance programme designed to ensure compliance with the terms of Anti-Bribery Laws and has and will maintain in place, adequate procedures designed to prevent any of its third party contractors or sub-contractors from undertaking any conduct that would give rise to an offence under Anti-Bribery Laws.

23.10. The Framework Agreement and any Call-off Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all counterparts shall together constitute the one agreement.

23.11. The construction, validity and performance of each Call-off Contract shall be governed by the Governing Law.

23.12. Except in relation to claims arising out of Australia, or to which the Australian Consumer Law applies, the parties irrevocably consent to and submit to being served with legal process issued from the state and federal courts located in the State of New York and irrevocably consent to the exclusive personal jurisdiction of the federal and state courts situated in the State of New York for the purpose of enforcing the arbitration provisions in paragraph 21.1.2 or hearing any other dispute, claim, or controversy under this Agreement (including enforcement of any award of specific performance and any claim for any provisional remedy, temporary, preliminary or permanent injunctive relief or other equitable relief). sThe parties irrevocably waive any objections to the personal jurisdiction of these courts. Any such claim, controversy, dispute or action must first be brought in the federal court of the State of New York in New York County, unless the federal courts do not have subject matter jurisdiction as a matter of law, in which case it must first be brought in the Commercial Division of the New York State Supreme Court in New York County (and can only proceed in New York County outside the Commercial Division if the Commercial Division rejects it). The parties also irrevocably waive any objections that these courts constitute an oppressive, unfair, or inconvenient forum and agree not to seek to change venue on these grounds or any other grounds.

24. INTERPRETATION

In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to Supplier or Client includes its personal representatives, successors and permitted assigns; (iii) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted and includes any subordinate legislation; (iv) any phrase introduced by the terms including or include shall be illustrative and shall not limit the sense of the preceding words; (v) a reference to writing or written includes emails but excludes faxes; (vi) the terms ‘personal data’, ‘personal information’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘sensitive information’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Legislation; and (vii) the following definitions apply: