Website Terms and Conditions

These terms and conditions (as amended under clause 29.3) (“Conditions”) govern the supply of services and licensing of software by KCP Ltd with registered address at Duke House, Downmill Road, Bracknell, Berkshire, England, RG12 1QS and with company number 06660663 (“KCP ”) to the person/firm who buys services (“Customer”). These Conditions apply to the exclusion of any other terms that the Customer seeks to impose, or which are implied by trade, custom, practice or course of dealing.

*Note particularly clause 20 (Limitation of Liability)*

BASIS OF CONTRACT

Each Order Form provided to the Customer constitutes an invitation to treat by KCP

Each Order constitutes an offer by the Customer to purchase the Hardware and for the provision of Services and/or the supply or provision of the Software. Following receipt of an Order, KCP may, at its option, submit an order acknowledgement to the Customer, which shall form a contract subject to the terms of the applicable Order Form and these Conditions (“Contract”), and the Contract shall come into existence immediately upon sending of the order acknowledgement (“Start Date”).

Should the Order (or any other correspondence from the Customer) contradict in any way the Order Form or any of these Conditions (“Contradictory Terms”), such Contradictory Terms shall not be incorporated unless and to the extent that a revised Order Form is issued by KCP incorporating any of the Contradictory Terms.

If there is an inconsistency between any of the provisions of the Contract, the provisions of the Order Form shall take precedence over these Conditions.

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

HARDWARE

The terms of this clause 2 apply in respect of any Hardware to be supplied pursuant to the Contract.

In consideration for the payment of all applicable Charges, KCP shall supply the Hardware to the Customer pursuant to the Contract.

Hardware delivery dates are approximate only and time of delivery is not of the essence. Delivery shall be completed on the Hardware’s arrival at the Delivery Location. The Customer is responsible for unloading, and any unloading that takes place shall be at the Customer’s risk, unless this is expressly included as part of any Services to be provided by KCP pursuant to the Contract.

KCP shall deliver the Hardware to the Delivery Location after the Hardware is ready.

If the Customer fails to accept or take delivery of the Hardware (including failing to provide appropriate delivery instructions to KCP Network), KCP Network shall store the Hardware until the earlier of a) delivery takes place and b) KCP resells or disposes of the Hardware in accordance with clause 2.9, and may at its option charge the Customer for all related costs and expenses (including insurance).

KCP Network may deliver in instalments, which shall be invoiced and paid for separately. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.

Risk in the Hardware shall pass to the Customer on completion of delivery at the Delivery Location.

KCP Network shall pass on to the Customer the benefit of any warranties it receives from the original equipment manufacturer in relation to the Hardware, but KCP Network makes no other warranty relating to the Hardware.

Unless and until title has passed to the Customer pursuant to clause 2.10, where 10 Business Days have elapsed since KCP Network attempted to re-deliver the Hardware to the Delivery Location and/or where KCP Network has either notified the Customer to arrange another delivery following failure of the first and the Customer has not engaged with this correspondence then KCP Network may resell or otherwise dispose of all of the Hardware or any part of them, and after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Hardware.

Title to the Hardware shall not pass to the Customer until KCP Network has received payment in full (in cleared funds) for all sums due to KCP Network for which payment is due, under any and all Contracts and any other agreements between the same).

Retention of Title

The Customer shall from delivery until title has passed to the Customer under these Conditions:

hold the Hardware on a fiduciary basis as KCP Network’s bailee;

store the Hardware separately from all other hardware;

ensure the Hardware is readily identifiable as KCP Network’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Hardware;

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

maintain the Hardware in satisfactory condition and keep them insured against all risks as are prudent and as may be required by law (including loss, damage or destruction by fire, theft or accident for their full price) and the Customer shall ensure that KCP Network’s interest is noted on such insurance policy and shall, on demand by KCP Network, supply copies of the relevant insurance policies or other insurance confirmation acceptable to KCP Network and proof of premium payment to KCP Network to confirm the insurance arrangements. If the Customer fails to effect or maintain any of the insurances required under the Contract, KCP Network shall be entitled to effect and maintain the same, pay such premiums as may be necessary for that purpose and recover the same as a debt due from the Customer; and

give KCP Network such information relating to the Hardware as KCP Network requires,

but the Customer may resell/use the Hardware in its ordinary course of business.

Where the Customer undergoes an Insolvency Event (or KCP Network believes that the same is about to occur) before title to the Hardware passes to the Customer, if the Hardware has not been resold or irrevocably incorporated into another product or service, (without limiting any other right or remedy KCP Network may have) KCP Network may demand the Customer deliver up the Hardware and, if the Customer fails to do so promptly, enter any premises of the Customer (or a third party) where the Hardware is stored to recover it. The Customer shall ensure that KCP Network shall have similar rights of entry with respect to any third party who takes possession of the Hardware prior to the passage of title from KCP Network to the Customer.

SUBSCRIPTION SERVICES

The terms of this clause 3 apply where the Customer orders a Subscription Service from KCP Network.

The Customer’s access to the Subscription Services shall be limited to the Authorised Users who are licensed to use the applicable Subscription Services.

The Customer shall ensure that each Authorised User keeps a secure password for its use of the Subscription Services, that such password is changed no less frequently than monthly and that each Authorised User keeps its password confidential.

KCP Network shall, with effect from the Service Level Start Date, use its reasonable endeavours to comply with the Uptime Service Level.

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

KCP Network does not warrant that:

the Customer’s use of the Subscription Services will be uninterrupted or error-free; or

the Customer’s access to the Customer Data will be uninterrupted or error-free.

The following shall not reduce Availability: (i) availability of the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access; (ii) Permitted Subscription Maintenance Events; (iii) Customer-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 KCP Network to perform the Subscription Services); and (iv) outages or disruptions attributable in whole or in part to Force Majeure Events.

Availability measurements are performed at [….. minute] intervals and measure the Availability of an availability test page within the Subscription Services within [….. seconds]. Availability measurement begins on the first day of the first calendar month, beginning on the Service Level Start Date. Uptime Service Level calculation shall be carried out by KCP Network 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.

KCP Network reserves the right to modify 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 KCP Network shall notify the Customer in any such event. Any other modification required by KCP Network shall be implemented pursuant to the Change Procedure.

KCP Network shall follow the archiving procedures for Customer Data as described in the Specification. However, it is the responsibility of the Customer to ensure Customer Data is appropriately backed-up.

SERVICES

The terms of this clause 4 apply with respect to any Services supplied pursuant to the Contract.

During the applicable Service Term (and any development period), in consideration for the payment of all applicable Charges, KCP Network shall provide or procure the provision of the applicable Services to the Customer.

KCP Network will provide the Services: (i) using reasonable skill and care; (ii) in accordance with Applicable Law; (iii) in accordance with the Specification in all material respects; and (iv) using appropriately skilled and qualified personnel.

Where KCP Network is present at the Customer’s premises, KCP Network shall use reasonable endeavours to observe all reasonable health and safety and security requirements that apply at such 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 Contract if:

as a result of such observation; or

observance of the same hinders or restricts KCP Network’s performance of its obligations under the Contract.

KCP Network will use its reasonable endeavours to supply all relevant Services in accordance with any performance metrics set out in the Order Form in respect of such Services (provided that the consequence of any failure shall be limited to those also detailed in the Order Form).

In respect of the Services, KCP Network shall use reasonable endeavours to meet any performance dates specified in the Order Form or Specification, but any such dates are estimates only and time is not of the essence for the performance of the Services.

If performance of the Services is delayed at the request of the Customer, or because of any acts or omissions of the Customer, KCP Network may, in its sole discretion:

set new dates for the performance of those Services;

seek to invoice the Customer for the Charges as they would have fallen due had the delay not occurred; and/or

apply a reasonable increase to the Charges.

KCP Network shall have the right to make any changes to the Services which: (i) improve the nature or quality of the 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 KCP Network shall notify the Customer in any such event. Such notification shall include any variations to the Charges which KCP Network reasonably considers to be necessary in light thereof pursuant to (ii) or (iii) above.

The Customer assumes sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use.

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

The Customer acknowledges and agrees that the provisions contained in these Conditions relating to the Services shall apply to such Subcontracted Services (save where expressly excluded) as may be added to or amended by any applicable Additional Subcontractor Conditions.

KCP Network may at any time, and at its sole option, replace any individual identified in the Order Form or otherwise allocated to the performance of the Services with another qualified individual.

Transfer Regulations: The parties do not envisage that the Transfer Regulations will apply to the Contract. Should any person claim to transfer to KCP Network or any subcontractor of the same (“Indemnified Entity”) as a result of the provision of any Services under a Contract, the Indemnified Entity shall be entitled to terminate such individual and the Customer hereby indemnifies the Indemnified Entity from and against any and all costs, losses and expenses incurred as a result of such individual claiming to transfer to the Indemnified Entity.

KCP NETWORK SOFTWARE

The terms of this clause 5 apply where the Customer licences any Software from KCP Network.

In consideration for the payment of all applicable Charges, KCP Network hereby grants to the Customer a non-exclusive licence for the licence term set out on the Order Form to use the Software.

The Customer’s access to the Software shall be limited to the Authorised Users who are licensed to use the Software.

Use of the Software shall be restricted to: (i) use of the same in conjunction with the Hardware; (ii) the Licence Type restrictions set out in the Order Form for the same; (iii) the use restrictions set out in the Order Form for the same; (iv) object code form; (v) the purpose described in the Order Form; (vi) the normal business purposes of the Customer; and (vii) employees of the Customer (and, where “contractor use” is permitted in the Order Form, third-party contractors using the same solely for the benefit of the Customer.

During the Service Term, KCP Network warrants that the related Software will perform so as to enable such Software (and any module) to comply with the Contract. The Customer’s sole remedy for breach of the warranty under this clause 5.5 shall be the correction of the Defect by KCP Network within a reasonable time from notification by the Customer of the same.

Delivery of Software shall be deemed to occur when KCP Network provides the Customer with a username and password enabling the Customer to access the same.

The Customer shall: (i) ensure that the number of persons using the Software does not exceed the number specified in the Order Form and use reasonable endeavours to prevent any unauthorised use; (ii) notify KCP Network 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 KCP Network 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.

The Customer shall ensure that each Authorised User accepts the terms of the End User Licence Agreement, Privacy Policy and Cookie Policy and keeps a secure password for its use of the Software, that such password is changed no less frequently than once every 90 days and that each Authorised User keeps its password confidential.

KCP Network shall provide to the Customer, from time to time, copies of the Documentation containing sufficient up-to-date information for the proper use of the Software. Such Documentation may be supplied in electronic form.

The Customer may make such further copies of the Documentation as are reasonably necessary for the use of the Software and for training the Customer Personnel in use of the Software. The Customer shall ensure that all of KCP Network’s proprietary notices are reproduced in any such copy.

Any unauthorised modifications, use or improper installation of the Software by the Customer (or on behalf of the Customer, other than by KCP Network Personnel) shall render all KCP Network’s warranties and obligations under the Contract null and void. KCP Network shall not be obliged to rectify such Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer Personnel or third parties without the permission of KCP Network.

Notwithstanding any other provision, KCP Network specifically denies any implied or express term or representation that the Software will be fit to operate in conjunction with any hardware items or software products other than with those that are identified in the Specification as being compatible with the Software.

KCP Network does not warrant that:

the Customer’s use of the Software will be uninterrupted or error-free; or

the Customer’s access to the Customer Data will be uninterrupted or error-free.

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

KCP Network reserves the right to modify the Software 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 KCP Network shall notify the Customer in any such event. Any other modification required by KCP Network shall be implemented pursuant to the Change Procedure.

Customer acknowledges and agrees that from time to time, certain aspects of the Services provided by KCP Network may be updated, modified, suspended or otherwise no longer made available due to circumstances beyond KCP Network’s reasonable control. Such circumstances may include, but are not limited to, amendments to or the disabling of, AI Features by third-party AI Technology providers (“External Factors”). KCP Network shall use reasonable endeavours to provide the Customer with prior notice of any such changes to the Services, but in any event shall not liable for any disruptions and/or changes to the Services resulting from an External Factor.

The Customer shall: (i) use reasonable endeavours to prevent any unauthorised use of the Software; (ii) notify KCP Network 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 KCP Network 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.

ATP SYSTEMS/API ACCESS

The terms of this clause 6 apply where the Customer wishes to interface the Services with an ATP System via an API.

The Customer will at its sole cost and expense procure any necessary services required to interface the Services with an ATP System via an API, so as to enable an Automated Data Flow.

Where API access is granted, the Customer will be issued a token access and licence terms for the Services as set out in clause 3 which shall extend to include the API as an additional module the Services.

The Customer shall ensure:

it has an appropriate licence/subscription in respect of the ATP System;

it has the necessary rights and licences from the provider of the ATP System required to:

allow the Services (or any AI Feature) to connect and interact with the ATP System;

enable the Automated Data Flow; and

allow the Services to perform to the required functionality (including displaying the ATP Data);

API Calls are made in compliance with the API Limits; and

it uses the ATP Data solely in accordance with the rights granted by the relevant Third Party provider of the ATP System.

The performance of an API and the ability to enable an Automated Data Flow is conditional on the performance and state of the ATP System. Issues with/defects in the ATP System, as well as changes to the ATP System from time to time may detrimentally affect the API/Automated Data Flow. The Customer accepts that these are outside of KCP Network’s control.

AI TECHNOLOGY AND AI FEATURES

Customer acknowledges that the Services may redirect, enable or assist it to access and correspond with AI Technology via an AI Feature, and which may be subject to third party terms and conditions, licences and other usage restrictions.

Customer acknowledges and agrees that by receiving the Services, any use by the Customer of AI Technologies and/or AI Features is done so solely at its own risk.

Except for the information relating to the relevant AI Technology and any AI Features provided by KCP Network to the Customer in the Services, KCP Network makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such AI Technology, or any AI Feature.

KCP Network recommends that the Customer refers to the Third Party owner of the relevant AI Technology’s website terms and conditions and privacy policy prior to using the relevant AI Technology.

Customer shall have the sole responsibility of ensuring that it can lawfully use any AI Technology and/or any AI Feature, and shall be responsible for any AI Customer Inputs and AI Customer Outputs.

Customer should take precautions when accessing, downloading or otherwise using any AI Customer Outputs from all AI Technology and AI Features provided as part of the Services. If the Customer decides to access Third Party websites through use of an AI Technology or AI Feature, then Customer agrees to doing so at its own risk.

OTHER SERVICES

The terms of this clause 8 apply where KCP Network has agreed under the Contract to provide any Other Services, and in this clause 8 “Output” shall mean, as applicable, the deliverables/results of the provision of such Services, as more particularly detailed in the Order Form.

The Customer shall in a timely manner:

provide all the Customer Content and Customer Materials (as appropriate);

as necessary, prepare its premises, equipment and existing systems (or those of a relevant third-party); and

facilitate such access to the Customer’s premises, equipment and existing systems (or those of a relevant third-party),

as may be needed by KCP Network in order to perform the relevant Services.

KCP Network shall subject the Output to such tests as are specified in the Order Form or, as applicable, the Specification.

The Customer shall be deemed to have accepted any Output if either: (i) the acceptance testing is certified by KCP Network to be successful; (ii) the Customer fails to provide the data or results necessary for acceptance testing to be undertaken within the time limits specified in the Order Form (in respect of which, time shall be of the essence); or (iii) the Customer commences operational use of the Output.

CONFIGURATION, INSTALLATION AND DESIGN SERVICES

The terms of this clause 9 apply where KCP Network has agreed under the Contract to provide any Configuration, Installation or Design Services, and in this clause 9 “Output” shall mean, in the case of Configuration Services the results of such services, and in the case of Installation Materials the items of hardware or software to be installed by the Installation Services.

The Customer shall in a timely manner:

provide all the Customer Content and Customer Materials (as appropriate);

where Configuration Services or Installation Services are being provided, prepare its premises, equipment and existing systems (or those of its third-party contractors); and

facilitate such access to the Customer’s premises, equipment and existing systems (or those of its third-party contractors),

as may be needed for KCP Network to perform the relevant Services.

KCP Network shall carry out any Configuration Services or Installation Services at the Location (or, at KCP Network’s option where applicable, via remote access), and subject the Output to its standard installation and acceptance tests, or such tests as are specified in the Order Form.

The Customer shall be deemed to have accepted any Deliverables from the performance of the Design Services if either: (i) the Customer expressly accepts the same; (ii) KCP Network can evidence that the Deliverables meet or exceed the requirements for the same set out in the Order Form; or (iii) the Customer commences use of such Deliverables.

MAINTENANCE SERVICES

The terms of this clause 10 apply where the Customer orders Maintenance Services from KCP Network.

KCP Network shall provide the Maintenance Services for the Supported Hardware and Supported Software at the Location to the Customer in accordance with the Maintenance Services Specification and for the longer of:

1 year from the Effective Date in respect of the Supported Hardware and Supported Software; and

the period(s) set out in the Order Form in respect of the Supported Hardware and Supported Software.

On the Customer informing KCP Network of a Defect in the Supported Software, KCP Network shall perform Included Corrective Maintenance of the Supported Software within the Maintenance Support Hours.

With respect to Excluded Maintenance:

KCP Network is not obliged to perform any Excluded Maintenance unless the Customer has agreed to pay the applicable Charges in respect of it; and

where KCP Network is performing or has performed the Maintenance Services in circumstances where it is subsequently established that the Defect in the Supported Software was due to any of the Excluded Causes, KCP Network may charge, and the Customer shall pay, the applicable additional Charges in respect of that work.

Any Charges for Additional Corrective Maintenance shall be calculated on a time and materials basis.

THIRD PARTY SOFTWARE

The terms of this clause 11 apply where the Customer orders Third-Party Software from KCP Network.

The Customer acknowledges and agrees that:

KCP Network is an agent of the Provider of the Third-Party Software;

KCP Network is not licensing the Third-Party Software to the Customer;

it shall be licensed to use the Third-Party Software only as specified in the applicable End User Agreement. For the avoidance of doubt, no licence is granted by KCP Network.

The Customer shall comply with the terms of the applicable End User Agreement.

THIRD-PARTY SERVICES

The terms of this clause 12 apply where the Customer orders Third-Party Services from KCP Network.

The Customer acknowledges and agrees that:

KCP Network is an agent of the Provider of the Third-Party Service;

KCP Network is not providing the Third-Party Services to the Customer;

it shall receive the Third-Party Services direct from the Provider subject to and in accordance with the applicable End User Agreement.

The Customer acknowledges that where it orders Third Party Services from KCP Network that additional Third Party terms may apply (including but not limited to Service Levels which KCP Network will use reasonable endeavours to work with the Provider and seek to meet).

KCP Network shall not be responsible for any Service interruptions due to changes in telecom infrastructure or SIM service outages which may impact the provision of Third-Party Services.

The Customer shall comply with the terms of the End User Agreement.

CUSTOMER OBLIGATIONS

The Customer shall:

provide all necessary co-operation reasonably required in relation to the Contract;

appoint a Customer Manager in relation to the Contract, who shall have the authority contractually to bind the Customer on matters relating to the Contract;

comply with any and all obligations which are set out in the Order Form, including in the applicable Specification which are stated to be performed by the Customer and any other obligations which are apparent or would be ordinarily expected to be complied with by the Customer in the ordinary course of receipt of similar services (from a competent provider, acting reasonably and in good faith);

promptly provide such assistance from the Customer Personnel or any decision, guidance, information or instruction as may be reasonably requested by KCP Network from time to time;

ensure that the terms of the Contract (including any specification) are complete and accurate;

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

and shall ensure that each Authorised User shall comply with the Acceptable Use Policy;

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, store, use or re-use any material which does not comply with the content standards set out in clause 13.2; (v) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); (vi) to knowingly store, distribute, transmit, send or upload any data or material that contains a Virus; and (vii) to (or attempt to) probe, scan, penetrate or test the vulnerability of any of KCP Network’s systems or networks or to breach any of KCP Network’s security or authentication measures, whether by passive or intrusive techniques, without KCP Network’s prior written consent;

except as expressly licensed, not (and not permit any third party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to Software, in whole or in part, or access all or any part of the Software in order to build any software, product or service which competes with the same;

ensure that there are in place all necessary consents, licences and permissions required to permit KCP Network to access and use all the Customer Content, Customer Materials and Customer Personal Data and any other items as may be appropriate in connection with each and every Contract; and

be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to KCP Network’s data centres (or, where appropriate, the third-party portal through which KCP Network provides Services to the Customer).

The content standards are as follows:

content must: (i) be accurate (where it states facts); (ii) be genuinely held (where states opinions); and (iii) comply with Applicable Law; and

content must not: (i) contain any material which is defamatory of any person, obscene, offensive, hateful, harmful, threatening, harassing 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 identity of any person or their affiliation with any other person; (vi) infringe the copyright, database right or trade mark of any other person; (vii) give the impression that it emanates from KCP Network, if this is not the case; or (viii) advocate, promote or assist any unlawful act.

CHARGES

The price for Hardware, Services and licenses of the Software is the price set out in the Order Form. Where no price is quoted, it shall be:

the price set out in KCP Network’s published price list as at the Start Date for provision of the Hardware and performance of the relevant Services; or

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

KCP Network reserves the right to vary the price for Hardware, Services and licenses of the Software as set out in clause 14.1 after completing a survey of the Customer’s site and determination of the scope of Hardware, Services and Software licenses.

Except where expressly agreed in writing to the contrary, the Charges shall not include travel or accommodation expenses, which shall become payable upon production of mileage claims/appropriate receipts.

The parties agree that following the first anniversary of the date of a Contract, KCP Network may review (and subsequently apply an increase to) any and all fees (including its Standard Rates) under the Contract (“Price Review”), provided that Price Review cannot be undertaken by KCP Network more than once in any twelve (12) month period. KCP Network shall give the Customer written notice of any such variation to the Charges following a Price Review two (2) months before the proposed date of that variation.

On no less than 2 months’ written notice to the Customer prior to a Term Extension, KCP Network may, (in addition to any other pricing change permitted pursuant to these Conditions) adjust the Charges by a percentage equal to the percentage increase in CPI since the prices were last set/revised, as appropriate.

If it is reasonably apparent that any of the pricing in the Order Form is incorrect (“Obvious Pricing Error”), the Customer must notify KCP Network of the same. When KCP Network becomes aware of an Obvious Pricing Error, it shall promptly notify the Customer 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 the Customer objects to the Correct Price, it may terminate the Contract on written notice to KCP Network.

Where a failure of the Customer to comply with its obligations in the Contract (including those set out in these terms and conditions as well as the Order Form) results in additional costs for KCP Network, a delay to the commencement of any of the Services, and/or wasted time, KCP Network may at its sole discretion charge the Customer for the same on a time and materials basis. In order to calculate the same, KCP Network’s Standard Rates shall apply unless other rates are specified in the Order Form.

Unless otherwise specified to the contrary in the Order Form, KCP Network will invoice the Customer as described in the table below:

Hardware	On placement of the Order
Configuration Services	Upon Completion
Software	Annually in advance
Maintenance Services	Quarterly in advance
Design Services	Upon completion
Subscription/Licenses Services	Annual in advance (SIM)
[Third-Party Services]	Annually in advance
[Third-Party Software]	Annually in advance
[Consultancy Services]	Paid arrears
[Training Services]	Paid arrears but certificate not issued until full payment has been received
[Other Services]	Payment in advance of delivery (PAYG)

If Hardware has not been delivered and/or Services are not performed as a result of the acts or omissions of the Customer, KCP Network may invoice the same on the date upon which delivery/performance was attempted.

Save as otherwise specified by KCP Network, the Customer shall pay each invoice which is properly due and submitted to it by KCP Network within 30 days of invoice date to a bank account nominated in writing by KCP Network. Alternatively, Customer can make payment via Direct Debit. Time for payment is of the essence. If KCP Network 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), KCP Network may charge interest on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Barclays Bank Plc 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.

In respect of any training provided as Other Services ordered by the Customer, a minimum cancellation period of 7 days is required, otherwise the agreed fee will be charged in full.

All Charges stated or referred to in the Contract are exclusive of:

value added tax or other sales taxes, which shall be added to KCP Network’s invoice(s) at the appropriate rate; and

all packing, insurance and transport costs, and any import or export duties or similar taxes, which shall be paid by the Customer (unless the same is expressly stated to be included within the price in the Order Form).

KCP Network may, without limiting its other rights or remedies, set off any amount owing to it by the Customer or any Affiliate against any amount payable by KCP Network to the Customer.

KCP Network reserves the right to increase any of its Standard Rates from time to time upon giving the Customer 30 days written notice before applying the increase. Should the Customer object to such increase, the Customer may terminate the Contract or the affected part of the Contract within such 30 day notice period on written notice to KCP Network.

INTELLECTUAL PROPERTY AND MATERIALS

KCP Network warrants to the best of its belief (but without having undertaken due diligence in connection with any rights granted to KCP Network by a third party) 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 the Customer pursuant to the Contract. The Customer warrants to KCP Network that KCP Network’s possession and use in accordance with these Conditions of any materials (including third-party materials) supplied by the Customer to KCP Network shall not cause KCP Network to infringe the rights, including any Intellectual Property Rights, of any third party.

The Customer acknowledges and agrees that:

subject to clause 15.2.2, KCP Network and/or its licensors own all Intellectual Property Rights in the Services;

the Hardware manufacturer and/or its licensors own all Intellectual Property in the Hardware; and

the applicable Provider and/or its licensors own all Intellectual Property Rights in the Third-Party Services and the Third-Party Software.

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

Any materials provided in respect of the Services are licensed to the Customer solely for the purposes of the receipt of such Services, unless and to the extent that wider use is stated on the Order Form.

KCP Network acknowledges and agrees that the Customer and/or its licensors own all Intellectual Property Rights in the Customer Content, AI Customer Input and AI Customer Output. Except as expressly stated herein or as is necessary to perform KCP Network’s obligations under the Contract, these Conditions do not grant KCP Network any Intellectual Property Rights or any other rights or licences to or in respect of any Customer Content, AI Customer Input and AI Customer Output.

Nothing in these Conditions shall be construed so as to prevent KCP Network from using Customer Data in the furtherance of its own business, general know-how or expertise gained in its performance of the Contract, provided that any such use does not constitute or result in a disclosure of any Confidential Information in breach of clause 16 (Confidentiality) or infringement of any Intellectual Property Rights.

The Customer hereby assigns to KCP Network all rights, title, and interest in and to any feedback, suggestions, or improvements provided by the Customer to KCP Network in relation to the Services, Software and/or Documentation (collectively, “Feedback”). The Customer acknowledges and agrees that KCP Network shall have the exclusive right to use, modify, and incorporate such Feedback into the Services, Software, Documentation and/or any other products or services without any obligation to the Customer.

CONFIDENTIALITY

Each party undertakes that it shall during the Contract, and thereafter, keep confidential and not disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the other party’s Group, except as permitted by clause 16.2 below.

Each party may disclose the other party’s Confidential Information:

to its Affiliates, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 16; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority, provided that, to the extent where it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 16.2.2, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.

No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

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

KCP Network may publicise its involvement with the Customer for its own marketing purposes, and any such publication shall not constitute an unlawful disclosure of Confidential Information for the purposes of this clause 16.

BRAND ASSOCIATION

The Customer hereby grants to KCP Network the right to display the Customer’s branding (including the right to use its association with the Customer as ‘Technology Partner of the Customer’ (or similar as may be agreed between the parties from time to time) in conjunction with the Customer’s branding) on the KCP Network website.

The Customer hereby consents to KCP Network creating and publishing content across various KCP Network channels (including but not limited to marketing and communications) from time to time regarding the work that it has undertaken for the Customer.

The Customer hereby grants to KCP Network the right to list the Customer on hard copy clients lists and on the client list available on KCP Network’s website (“Customer Lists”) (provided that such usage may not occur prior to the date of the first Contract and the Customer shall be alphabetically listed with other clients of KCP Network and shall not be differentiated in any manner). KCP Network may from time to time use the Customer’s logo in the Customer Lists provided that the Customer’s logo has been approved by the Customer.

DATA PROTECTION ARRANGEMENTS

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 the Customer shall act as a controller and KCP Network shall act as a processor and in any such case:

KCP Network shall be a controller where it is collecting and using personal data in relation to the management of its Customer accounts; and

KCP Network shall be a processor where it is processing personal data in relation to the Data Processing Particulars in connection with performing its obligations under the Contract.

KCP Network shall comply with, and shall procure that any Affiliates comply with, the provisions of the Data Protection Legislation in relation to all Customer Personal Data that is processed by it in connection with the Contract.

KCP Network shall be permitted to appoint sub-contractors, and to disclose personal data to them for processing in accordance with the Contract, provided always that the sub-contractor’s right to process the personal data terminates automatically on expiry or termination (for whatever reason) of the Contract for which the sub-contractor was engaged.

The Customer acknowledges and agrees that KCP Network shall have the right to use anonymised aggregated Customer Personal Data for its own business purposes, including but not limited to, improving and enhancing the Services, Software and/or Documentation, conducting research and analysis, and developing new products and services. KCP Network shall take reasonable steps to ensure that the anonymised aggregated data does not include any information that could identify the Customer or any Authorised User.

DATA PROCESSING OBLIGATIONS

To the extent that KCP Network is acting as a Processor for and on behalf of the Customer, it shall:

only process the Customer Personal Data on the Customer’s documented instructions except insofar as required to do so by Data Protection Legislation

inform the Customer on becoming aware of:

any legal requirement that requires KCP Network to process Customer Personal Data otherwise than on the Customer’s documented instructions, unless Applicable Laws prohibit such information on important grounds of public interest; or

any instruction from the Customer in relation to the processing of personal data which, in KCP Network’s reasonable opinion, infringes Data Protection Legislation;

taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk to the rights and freedoms of natural persons, and in particular the risks from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or, or access to personal data, implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risk;

ensure that its employees, and any other persons with access to Customer Personal Data are made aware of their data protection and security obligations and are subject to binding obligations of confidentiality;

not engage another person to process any Customer Personal Data (a “sub-processor”) without the Customer’s prior specific or general written authorisation, and in the case of a general written authorisation, inform the Customer of any intended changes concerning the addition or replacement of any sub-processor and allow the Customer reasonable opportunity to object to such change;

ensure that any sub-processor is engaged on terms equivalent to those which KCP Network itself is subject under this clause 19 (and any other confidentiality or similar obligations contained in the Contract), and provides sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of Data Protection Legislation;

where a sub-processor fails to fulfil its data protection or confidentiality obligations, remain fully liable to the Customer for the performance of (or failure to perform) those obligations;

if a data subject makes a request relating to the exercise of his or her legal rights in relation to personal data, at the Customer’s reasonable cost, provide the Customer with any information and assistance reasonably required by the Customer in order to respond to the request;

if it becomes aware of a personal data breach in relation to any Customer Personal Data, notify the Customer immediately upon becoming aware of the breach and thereafter provide details of the nature of the personal data breach, and provide the Customer with such information and assistance as it requires in relation to the personal data breach;

taking into account the nature of the processing and the information available to KCP Network, at the Customer’s cost, provide the Customer with such information and assistance as the Customer reasonably requires in order to carry out any privacy impact assessments, consult with a supervisory authority prior to processing, or meet any obligations under Data Protection legislation which derive from such activities;

upon the termination of the Contract for any reason, after completing any processing of personal data on the Customer’s behalf, or on the Customer’s written request, delete or return all such personal data (and any copies of the same) unless KCP Network is required to store such copies to comply with a requirement imposed by Applicable Laws, and where KCP Network is required to delete personal data, to the extent that it is not practical to do so immediately, KCP Network will do so as soon as possible, and in the meantime shall ensure appropriate safeguards are put in place and the data is not retained for a longer period than is appropriate;

KCP Network may from time to time transfer Customer personal data outside of the United Kingdom to a third country or international organisation in order to facilitate the Customer’s payment of any Charges through an approved third-party payment provider. KCP Network shall not transfer any Customer personal data without either (i) the UK Government having decided that country or organisation ensures adequate protection under article 45; (ii) having other appropriate safeguards in place as set out in article 46; (iii) one or more of the derogations in article 49 applies; or the transfer is made in compliance with standard contractual clauses; and

subject to the Customer providing appropriate confidentiality undertakings, make available to the Customer all assistance and information necessary to demonstrate compliance with article 28, save that this shall not require KCP Network to disclose or permit access to any of its (or any third party’s) confidential or commercially sensitive information,

and the Customer shall ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the Customer Personal Data to KCP Network and/or lawful collection of the Customer Personal Data by KCP Network on behalf of the Customer for the duration and purposes of the Contract.

Where the Customer makes any such request under clause 19.1.1 to delete or return personal data prior to the termination of the Contract, and it serves to hinder or prevent KCP Network’s obligations thereunder, the Contract shall continue despite such reduced performance, and the Charges which have been paid or which will become payable shall not be affected thereby.

WARRANTIES, INDEMNITIES AND LIMITATION OF LIABILITY

KCP Network warrants that it has the necessary rights to enter into and perform its obligations under the Contract (including all appropriate licences, consents and permissions from any third party providers of AI Technology and AI Features where applicable).

All representations, warranties or terms (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, KCP Network 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 Third-Party Software (including any AI Customer Outputs) for any purpose, whether or not such purpose is disclosed to KCP Network (including by way of the Specification).

KCP Network gives no warranty that any element of the Service delivered under licence through a third party:

is not affected or potentially affected by claims that may be advanced by third parties; or

that data accessed or generated through that part of the Service does not infringe the data protection rights of a third party.

The Customer hereby indemnifies KCP Network (and its respective officers, directors, employees, agents and contractors) 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) (“Losses”) suffered or incurred by KCP Network to the extent that such Losses are alleged to arise from or in connection with:

any claim that any Client Data is unlawful or infringes, misappropriates, or otherwise violates any third party Intellectual Property Rights;

KCP Network’s storage/handling of any Customer Personal Data provided it is done in accordance with its obligations under this Contract;

any failure of the Customer to obtain appropriate and hold for the duration of the contract term 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;

any failure of the Customer to ensure its compliance with Applicable Law in accordance with its obligations under these Conditions;

any use of the Services or Third-Party Software by the Customer other than as envisaged under the Contract;

failure of an Authorised User to comply with the End User Licence Agreement;

the Customer’s breach of any End User Agreement; and

any other Customer Default.

KCP Network shall defend the Customer, its officers, directors and employees against any claim that Software or Services infringe any United Kingdom patent effective as of the Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts finally awarded against the Customer in judgment or settlement of such claims, provided that:

KCP Network is given prompt notice of any such claim;

the claim does not result from the Customer’s failure to install an update or new version of the Software or Subscription Service as soon as is practicable following its release by KCP Network and/or any third party provider of AI technology;

the Customer provides reasonable co-operation to KCP Network in the defence and settlement of such claim (at KCP Network’s expense, provided such expenses are reasonable and can be evidenced to KCP Network’s satisfaction); and

KCP Network is given sole authority to defend or settle the claim.

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

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:

any breach of these Conditions howsoever arising; and

any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) or breach of statutory duty arising under or in connection with the Contract.

Nothing in these Conditions shall limit or exclude KCP Network’s or the Customer’s liability for:

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

fraud or fraudulent misrepresentation; and

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

Subject to clauses 20.7 and 20.8, KCP Network’s liability in respect of loss or damage under the Contract in any 12 month period shall not exceed a sum equal to 125% of the total Charges paid and payable to KCP Network by the Customer under the Contract during the period of 12 months immediately prior to the event giving rise to the claim.

Subject to clause 20.7, in no event will KCP Network be liable to the Customer (whether in contract, tort, negligence or otherwise):

for the Third-Party Services or the Third-Party Software beyond compliance with clauses 11.2 and 11.3

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

for any indirect, special or consequential loss or damage;

to the extent that any delay in performing or failure to perform KCP Network’s obligations is due to a failure by the Customer to perform its own obligations under the Contract or if delay results from a failure by the Customer to comply with reasonable requests by KCP Network for instructions, information or action required by it to perform its obligations within a reasonable time; or

for the consequences of any other acts or omissions of the Customer or the Customer Personnel.

If KCP Network is responsible for carrying out back-ups of Customer Content, in the event of any loss or damage to Customer Content, the Customer’s sole and exclusive remedy shall be for KCP Network to use reasonable commercial endeavours to restore the same from its latest back-up maintained by KCP Network in accordance with its archiving procedure.

Save for the obligations set out in clause 20.10, in no event shall KCP Network be liable for any loss, destruction, alteration or disclosure of Customer Content caused by any third party (except those third parties sub-contracted by KCP Network to perform services related to maintenance and back-up).

TERM AND TERMINATION

The Contract shall commence on the Start Date and shall continue for the Initial Term stated in the relevant Order Form (or until performance of Services has been completed) and each Term Extension (the “Term”) unless terminated in accordance with its terms.

Without prejudicing any other right or remedy available to it, the Customer may terminate a Contract at the end of the then current Term by providing KCP Network with no less than three (3) months’ written notice.

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

the other party fails to pay any amount due under the Contract on the Due Date for payment and remains in default not less than 20 Business Days after being notified in writing to make such payment;

the other party commits a material breach of any other term of the 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; or

the other party repeatedly breaches any of the terms of the 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 Contract; or

the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

Without prejudicing any other right or remedy available to it, KCP Network may terminate the Contract should an Insolvency Event occur.

Without prejudicing any other right or remedy available to it, KCP Network may terminate the Contract with immediate effect by giving written notice to the Customer if there is a change of control of the Customer (within the meaning of section 1124 of the Corporation Tax Act 2010).

Without prejudicing any right to terminate which KCP Network may have, KCP Network will be entitled to suspend any Services without notice if:

there is a Default on the part of the Customer; or

any of the events set out in clauses 21.4, 21.5 or 21.7 occur in relation to the Customer.

KCP Network 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 KCP Network of any of its obligations and KCP Network shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from any failure or delay by KCP Network to perform any of its obligations as set out in this clause.

Where KCP Network acquires the right to terminate or suspend Services under the Contract pursuant to this clause 21, such right shall extend to any other contracts concluded between the parties incorporating these Conditions, whether prior or subsequent to the Contract.

CONSEQUENCES OF TERMINATION

On termination for any reason:

all rights granted to the Customer under the Contract shall cease;

for the avoidance of doubt, all rights granted to an End User under any End User Licence Agreement shall cease;

the Customer shall immediately pay any sums due to KCP Network (including sums on a time and materials basis for any work in progress) without set off or deduction;

subject to KCP Network’s obligations with respect to any other Contract which remains in force, each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party; and

provided all sums due to KCP Network’s Group from the Customer’s Group have been paid, KCP Network shall make available to the Customer a copy of all Customer Content in a commonly-readable electronic format for a period of no more than 7 days following termination. After such period, KCP Network may permanently delete all Customer Content residing on its systems.

INSPECTION

The Customer shall permit KCP Network to inspect and have access to any premises (and to the computer equipment located there) at or on which the Services and/or Software is being accessed, and have access to any records kept in connection with the licence of Software [and/or Services under these Conditions, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that KCP Network provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times. This right shall continue beyond termination/expiry to enable KCP Network to verify that use of Software has ceased.

ASSIGNMENT

The Customer may not assign, sub-contract, sub-license, charge or otherwise deal in any other manner with all or any of its rights or obligations under the Contract, nor provide any of the Services directly or indirectly to third parties, without the consent of KCP Network, such consent not to be unreasonably withheld or delayed. The Customer shall not allow any of its rights under the Contract to become the subject of any charge, lien or encumbrance.

KCP Network may freely assign, sub-contract, charge or otherwise deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.

The Customer agrees that it shall co-operate and undertake all matters at KCP Network’s cost and expense that are necessary to novate or assign any Contract or any parts thereof to any third party when requested to do so by the Customer.

FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the 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; pandemic or epidemic; compliance with any law or governmental order, rule, regulation or direction; accident; fire, flood, or storm; in each case whether or not foreseeable (“Force Majeure Event”).

In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 2 months, the party not affected may terminate the Contract by giving 20 Business Days’ written notice to the other party.

NOTICES

Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

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

sent by email to the email addresses for legal notices as set out in the Order Form.

Any notice shall be deemed to have been received:

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

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

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 clause 26.2.3, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.

This clause 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.

DISPUTE RESOLUTION

If a dispute arises out of or in connection with these Conditions or the performance, validity or enforceability of the Contract (a “Dispute”) then the parties shall follow the procedure set out in this clause 27:

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

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 mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (an “ADR Notice”) to the other party to the Dispute, requesting mediation. A copy of the ADR Notice should be sent to CEDR Solve. The mediation will start not later than 10 Business Days after the date of the ADR Notice.

If the Dispute is not resolved within 1 month of the mediator’s appointment, then either party may commence court proceedings, but provided that nothing in this clause 27.2 shall prevent either party from either continuing with any means of alternative dispute resolution as may be agreed in writing from time to time, or seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.

CHANGE PROCEDURE

The Customer Manager and the KCP Network Manager shall endeavour to meet (by telephone or alternative digital means (e.g. MS Teams) in person at least once every three (3) months to discuss matters relating to the Services (including the Software).

Where a party identifies a need to change the Contract, they may at any time request such a change.

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”).

Where the Customer has requested the change, KCP Network shall, as soon as reasonably practicable, provide a written estimate to the Customer of:

the likely time required to implement the change;

any necessary variations to the Charges arising from the change;

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

any other impact of the change on the hardware/services provided under the Contract.

Unless both parties consent to a Change Request there shall be no change to the Services and any other terms of the Contract. For the avoidance of doubt, KCP Network has no obligation to consent to a Change Request unless and until the parties have agreed the necessary variations to the KCP Network Charges arising from such change, the Services and any other relevant terms of the Contract to take account of the change.

GENERAL

Entire agreement.

The 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.

Neither party shall have any remedy in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Neither party shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

Third party rights.

A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.

Variations.

Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by KCP Network. KCP Network may vary these Conditions from time to time on giving the Customer at least 30 days’ notice in writing via e-mail, or through the Service itself.

Waiver.

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 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 Contract are cumulative and do not exclude rights provided by law.

Severance.

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.

If any provision or part-provision of the Contract is deemed deleted under clause 29.5.1 above, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

No partnership or agency.

Nothing in the 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.

Governing law and jurisdiction.

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any such dispute or claim.

Schedule 1 – Definitions and Interpretation

Interpretation

In these Conditions: (i) person includes a natural person, corporate or unincorporated body; (ii) a reference to KCP Network or Customer 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’, ‘data subject’, ‘processor’, ‘controller’, ‘processing’, ‘personal data breach’, ‘pseudonymisation’, ‘special categories of data’ and ‘supervisory authority’ have the meanings set out in Data Protection Legislation; and (vii) the following definitions apply:

“Acceptable Use Policy”

the acceptable use policy (if any) applicable to the relevant Services/Software, set out at: [Insert Link], as may be amended or updated by KCP Network from time to time on written notice to the Customer.

“Additional Corrective Maintenance”

any Excluded Maintenance performed by KCP Network in accordance with these Conditions.

“Additional Subcontractor Conditions”

any additional conditions relating to Subcontracted Services, as set out in the Order Form.

“Affiliates”

each agent, employee, contractor or sub-contractor of a party or the party’s Group.

“AI Client Input”

means information, data, materials, text, prompts, images, or other content that is (a) input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer or any Authorised User for processing by or through an AI Feature, or (b) collected, downloaded, or otherwise received by an AI Feature for or on behalf of Customer or any Authorised User, including in the case of (a) and (b) for purposes of fine-tuning, grounding, or otherwise modifying, refining, adapting, or customizing an AI Feature by, for, or on behalf of Customer.

“AI Client Output”

means information, data, materials, text, images, code, works, expressions, or other content generated or otherwise output from an AI Feature in response to AI Client Input or from use of an AI Feature by or on behalf of Customer or its Authorised Users.

“AI Feature”

means any feature, functionality, or component of the Services that incorporates, uses, depends on, or employs any AI Technology.

“AI Technology”

means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts, provided by a Third Party.

“API”

an application programming interface between the Services (including any AI Feature) and an ATP System as described in the applicable Specification as may be updated from time to time.

“API Call”

each call to/from an ATP System via the API to interact with the Services (including any AI Feature).

“API Limits”

the restrictions for use of the API, including any applicable quotas, rate limits, concurrency limits and any other restrictions set out in the Specification.

“Applicable Law”

the laws of England and Wales, together with any other mandatory laws, regulations, regulatory policies, guidelines or codes of practice or industry codes which apply to the performance of each party’s obligations under the Contract.

“ATP System”

an approved Third Party system which can be interfaced with the Services (or any aspect thereof) via the API so as to enable an Automated Data Flow.

“ATP Data”

data/content made available from an ATP System via an Automated Data Flow.

“Authorised Users”

those employees and independent contractors of the Customer who are entitled to use the Software or Subscription Service (as applicable) under the Contract (together with any other Authorised Users expressly envisaged under the Order Form).

“Automated Data Flow”

a push/pull of data to/from an ATP System.

“Availability”

the availability of an access point on the Customer’s hosting provider’s backbone network, subject to clauses 3.7 and 3.8.

“Business Day”

a day other than a Saturday, Sunday or public holiday in England.

“Change Procedure”

the procedure detailed in clause 28.

“Change Request”

a request to change the terms of the Contract, as made in accordance with the Change Procedure.

“Charges”

the charges payable by the Customer to KCP Network, as set out in the Order Form.

“Confidential Information”

information of commercial value, in whatever form or medium, disclosed by a party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to clients, pricing and marketing information relating to the business of either party, information which is marked as confidential, or information which ought reasonably to be considered confidential in light of the nature of the information and/or circumstances of its disclosure, including Customer Data, but excluding information that:

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

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

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

is independently developed by the receiving party, as shown by written evidence.

“Configuration Services”

those configuration services detailed in the Order Form, if any.

“Contract”

the contract (as defined in clause 1.2) between the Customer and KCP Network and governed by these Conditions.

“Customer Content”

any data, documents, text, drawings, diagrams, images or sounds (together with any database made up of any of these), embodied in any medium, that are provided to KCP Network by or on behalf of the Customer, in order to perform its obligations pursuant to the Contract.

“Customer Data”

the data inputted into the information fields of the Software and/or Subscription Services by the Customer, by Authorised Users, or by KCP Network on the Customer’s behalf.

“Customer Default”

any act or omission by the Customer that (i) results in a failure to perform a relevant obligation under the Contract; (ii) results in a breach of the terms of the Contract; or (iii) causes a delay, any other non-compliance (whether by the Customer or KCP Network), or hinders the performance of the agreed Services.

“Customer Lists”

has the meaning given to it in clause 17.3.

“Customer Manager”

the Customer’s manager for the Services appointed under clause 13.1.2 and as specified in an Order Form.

“Customer Materials”

any and all materials, other equipment (including cabling, network interfaces, power and power adapters) and software necessary for KCP Network to perform its obligations pursuant to the Contract, save to the extent the same is expressed to be supplied by KCP Network pursuant to the Contract.

“Customer Personal Data”

any personal data disclosed by the Customer to KCP Network or collected by KCP Network on the Customer’s instructions in connection with the Contract.

“Customer Personnel”

employees, directors and agents of the Customer, together with employees, directors and agents of any contractor undertaking activities on behalf of the Customer who are not KCP Network Personnel.

“Data Processing Particulars”

the data processing particulars set out in the Order Form (where applicable).

“Data Protection Legislation”

any law, statute, regulation, rule or other binding restriction regarding the protection of individuals with regards to the Processing of their Personal Data to which a party is subject, including the DPA and the GDPR (to the extent it remains applicable) and any code of practice or guidance published by the Information Commissioner’s Office from time to time.

“Default”

any act or omission of a party, or failure by a party to perform a relevant obligation under the Contract.

“Defect”

an error in the applicable software that causes it to fail to operate materially in accordance with its Specification/Documentation.

“Deliverables”

all documents, products and materials in any form: (i) developed by KCP Network or its agents, contractors and employees; and/or (ii) licensed by KCP Network to the Customer and its Affiliates, as part of or in relation to the performance of its obligations under the Contract, including all Intellectual Property Rights as may be embodied therein. For the avoidance of doubt, Deliverables shall exclude any Third-Party Software.

“Design Services”

those design services detailed in the Order Form, if any.

“Documentation”

any operating manuals, user instruction manuals/guides, technical literature and all other related materials in human-readable or machine-readable forms supplied by KCP Network as specified in the Order Form.

“DPA”

the Data Protection Act 2018.

“Due Date”

in respect of a payment under the Contract, the date on which such payment is due pursuant to these Conditions.

“Effective Date”

in respect of the provision of a particular Service, the effective date for the same specified in the Order Form, or if none is specified, the effective date for the Contract, or if none is specified, the Start Date of the Contract.

“End User Agreement”

in respect of:

any Third-Party Service, the end user agreement under which the Provider agrees to supply the Third-Party Service to the Customer, referred to in the Order Form or required to be accepted by the Provider when accessing the Third-Party Service online;

Third-Party Software, the end user agreement under which the Provider agrees to licence the Third-Party Software to the Customer, referred to in the Order Form or required to be accepted by the Provider when downloading/using the Third-Party Software; and

any Open-Source Software, the specific licence under which the relevant Open-Source Software is distributed, (as varied from time to time in accordance with the terms of such End User Agreement);

“End User Licence Agreement”

the end user licence agreement terms and conditions set out at: [Insert Link].

“Excluded Causes”

any of the following:

misuse, incorrect use of or damage from whatever cause (other than any act or omission by KCP Network), including failure or fluctuation of electrical power;

failure to maintain the necessary environmental conditions for use;

(use in combination with any equipment or software not provided/approved in writing by KCP Network;

use in combination with equipment or software which suffers a fault;

relocation or installation by the Customer or any Third-Party;

any act or omission of a Third-Party;

any breach of the Customer’s obligations under the Contract howsoever arising;

any modification not authorised by KCP Network;

operator error; or

any other excluded causes set out in the Order Form.

“Excluded Maintenance”

any Maintenance Services necessary as a result of any of the Excluded Causes.

“External Factors”

As defined in clause 5.16.

“Force Majeure Event”

as defined in clause 25.1.

“Group”

each and every entity that directly or indirectly controls, is controlled by, or is under common control with a party, for so long as such control exists. In the case of companies and corporations, control means beneficial ownership of more than 50% of the voting stock, shares, interest or equity in an entity; in the case of any other legal entity, “control” and “controlled” shall exist through the ability to directly or indirectly control the management and/or business of the legal entity.

“GDPR”

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016, together with any implementation of the above into UK law. Any reference to “articles” are references to the GDPR.

“Hardware”

the hardware supplied by KCP Network as set out in the Order Form.

“Included Corrective Maintenance”

maintenance services expressly described within the Maintenance Services Specification, to be provided during the Maintenance Support Hours.

“Initial Term”

the period of time described as such in the Order Form.

“Insolvency Event”

means (a) the Customer suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts under section 123 of the Insolvency Act 1986 or is deemed either unable to pay its debts or as having no reasonable prospect of so doing within the meaning of section 268 of the Insolvency Act 1986 or (if a partnership) has any partner to whom any of the above applies; (b) the Customer starts negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for/enters into any arrangement with its creditors; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for/in connection with the winding up of the Customer; (d) the Customer is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced on or sued against, the whole or part of its assets which is not discharged within 14 days; (f) an application is made to court, or an order is made to appoint an administrator, or notice of intention to appoint an administrator is given or an administrator is appointed over the Customer; (g) a floating charge holder over the assets of the Customer becomes entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; (i) any event analogous to those mentioned in (a)-(h) above in another jurisdiction.

“Installation Services”

those installation services detailed in Order Form, if any.

“Intellectual Property Rights”

patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Location”

the location for performance of the applicable Services set out in the Order Form (if any), or any other location agreed between the parties in writing from time to time.

“Maintenance Event”

maintenance of the Software or Subscription Service that may require interruption of the Software or Subscription Service.

“Maintenance Services”

those software and/or hardware maintenance services detailed in the Order Form.

“Maintenance Services Specification”

the description of the maintenance services set out in the Order Form.

“Maintenance Support Hours”

the maintenance support hours specified in the Maintenance Services Specification or if no hours are specified, 9.00am to 5.30pm UK time, each Business Day.

“Normal Business Hours”

9.00am to 5.30pm UK time, each Business Day.

“Order”

the Customer’s agreement to the terms of an Order Form, which may include signing and returning an Order Form or a communication from the Customer to KCP Network agreeing to the terms of the Order Form (within the period during which the terms of the Order Form remain valid).

“Order Form”

KCP Network’s written quotation relating to one or more of the following:

the supply of the Software (or any module);

Hardware;

Subscription Services; or

any other Services.

“Other Services”

Services to be provided by KCP Network pursuant to a Contract other than the Subscription Services, including:

Design Services;

implementation and/or Configuration Services;

Installation Services;

Training Servies; and/or

other professional services,

as more particularly detailed in the applicable Order Form.

“Permitted Subscription Maintenance Event”

a Subscription Maintenance Event: (i) for planned maintenance outside of Maintenance Support Hours, where KCP Network has given the Customer at least [3] days’ advance notice of the same; (ii) for emergency maintenance, where KCP Network has given the Customer as much notice as possible of the same; and (iii) which occurs during Maintenance Support Hours and which was caused by the Customer or requested by the Customer to be undertaken during Maintenance Support Hours.

“Price Review”

has the meaning given to it in clause 14.2.

“Provider”

the third-party provider of the applicable Third-Party Services or Third-Party Software as detailed in the Order Form.

“Security Requirements”

the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the seventh data protection principle of the DPA and/or the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR) as applicable.

“Service Level Start Date”

the start of the month after the Installation Services (if any) have been satisfactorily completed.

“Service Levels”

in respect of a Service to be provided by KCP Network pursuant to the Contract, the service levels for the applicable Services (if any), as set out in the Order Form or added by a change pursuant to clause 29.3.

“Service Term”

the term for the provision of the applicable Services (or where different elements of the Services are to be provided for differing terms, the term for that element), as set out in the Order Form.

“Services”

Deliverables, Subscription Services and/or the Other Services (as applicable under the Order Form).

“Services Specification”

in respect of the Services, the specification for the same as set out (or referred to) in the Order Form (including in any applicable statement of work); and in respect of Third-Party Services, the specification from the same determined by the applicable Provider.

“Software”

the software, which is licensed directly from KCP Network to the Customer pursuant to clause 5 and is provided (or made available) to the Customer.

“Sourcing Issue”

an inability on the part of KCP Network to source particular materials or resources (including KCP Network Personnel) on terms similar or identical to those available at the Effective Date (including due to exchange rate fluctuations, increases in taxes or duties) or a change in Applicable Law.

“Specification”

the specification for the applicable Services as set out (or referred to) in the Order Form (including in any applicable statement of work).

“Standard Rates”

KCP Network’s standard rates for KCP Network Services as made available by KCP Network from time to time.

“Start Date”

as defined in clause 1.2.

“Subcontracted Services”

any services to be provided by KCP Network which it has subcontracted to a third party supplier, the supply of which may be subject to the Additional Subcontractor Conditions (if any), as set out in the Order Form.

“Subject Access Request”

an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his rights under the Data Protection Legislation.

“KCP Network Manager”

KCP Network’s manager for the Services appointed under clause 13.1.1 and as specified in an Order Form.

“KCP Network Personnel”

KCP Network’s employees, directors and agents, together with employees, directors and agents of any contractor undertaking activities on behalf of KCP Network in relation to the performance of its obligations under the Contract.

“Subscription Maintenance Event”

maintenance of the Subscription Services that may require interruption of the Subscription Services.

“Subscription Services”

the making available by KCP Network to the Customer of access to remotely hosted applications via hosting services as set out in the Order Form (excluding any Third Party Services).

“Supported Hardware”

that hardware listed as supported hardware in the Order Form.

“Supported Software”

those software programs listed as supported software in the Order Form.

“Term”

the period described as such in clause 21.1.

“Term Extension”

each extension to the Term, as detailed in the Order Form.

“Third Party”

a person other than KCP Network Personnel or the Customer.

“Third-Party Software”

the software to be provided by the applicable Provider pursuant to the applicable End User Agreement, as set out in the Order Form.

“Third-Party Services”

any services to be provided by the applicable Provider pursuant to the applicable End User Agreement, as set out in the Order Form.

“Training Services”

those training services detailed in Order Form, if any.

“Transfer Regulations”

the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246).

“Uptime Service Level”

the uptime service level set out in the Order Form, identifying a percentage level of Availability per calendar month.

“Virus”

any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

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