AGREEMENT FOR THE PURCHASE OF CLOUD IT SERVICES
between
MAGNETIZE CONSULTANTS LIMITED
and
The Customer

This Agreement is effective immediately or if earlier the date of the invoice for the Kit Builder System.

PARTIES
(1) The legal entity invoiced for the Kit Builder System (Customer); and
(2) MAGNETIZE CONSULTANTS LTD, a company incorporated and registered in England and Wales with company number 04921828 whose registered office is at Unit P2, Innsworth Technology Park, Innsworth Lane, Gloucester, Gloucestershire, GL3 1DL (Supplier) and who operate the brand name Kit Builder,
each a Party to this Agreement and together, the Parties.

BACKGROUND
(A) The Supplier is a 3D customisation consultancy firm, delivering a range of IT services to its customers around the world.
(B) The Customer now wishes to procure the Kit Builder hosted solution from the Supplier and the Supplier wishes to provide the same subject to the terms and conditions set out in this Agreement.

IT IS AGREED as follows:

1. Definitions and Interpretation
   The following definitions and rules of interpretation set out in this Clause apply throughout this Agreement.
   
   1.1. Definitions:
   
   Additional Services: any additional services to be performed by the Supplier pursuant to this Agreement and agreed in accordance with Clause 2.2.
   Applicable Laws: the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Services and Deliverables by the Supplier in its capacity as supplier of information technology services.
   Authorised Use Policy: the Supplier’s policy governing the acceptable usage of the Services as set out in Schedule 3 and updated from time to time.
   Authorised Users: means those individuals and companies (including the Customer’s end users) who are authorised by the Customer to use the Licensed Software in accordance with the licence granted at Clause 6.2.
   Business Day: means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
   Change of Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression ‘change of control’ shall be construed accordingly.
   Charges: any and all fees and charges payable to the Supplier under or in connection with this Agreement and as further detailed in any relevant Statement of Work.
   Commencement Date: the date of this Agreement.
   Confidential Information: all information which is proprietary or confidential including, but not limited to (i) technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been provided by the Supplier to the Customer and, (ii) any information concerning the business, affairs, customers, clients or suppliers of the other Party.
   Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
   Customer Data: means all code, data, documents, artwork, text, drawings, diagrams, images or sound (together with any database made up of any of those) embodied in any medium and which are supplied directly or indirectly to the Supplier by or on behalf of the Customer, or which the Supplier is required to generate, process, measure, quantify, store or transmit pursuant to this Agreement (including any personal data that may form part of the foregoing).
   Customer’s Project Manager: the individual nominated to act as such by the Customer from time to time and as further described in Clause 4.3.4.
   Customer’s Property: means any and all forms, manuals, records and other documents owned by the Customer and provided by the Customer from time to time, to the Supplier in connection with this Agreement, including materials containing Customer Data.
   Customer Systems: means the software, telecommunications system, hardware and other equipment owned by, or licensed to, the Customer, together with any developments, upgrades, updates, modification, variations and fixes to the same, in each case created from time to time and which are to be interfaced with the Supplier Systems as part of the Services, or otherwise used or accessed by the Supplier from time to time in connection with this Agreement.
   Data Protection Legislation: all applicable privacy and data protection laws including the General Data Protection Legislation ((EU) 2016/679) (GDPR) and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426) (Privacy Regulations) as amended by the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (SI 2011/1208), the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2015 (SI 2015/355) and the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2016 (SI 2016/524).
   Deliverables: all templates and other products and materials developed by the Supplier in relation to the Services in any media, which are identified as such in a Statement of Work.
   Good Industry Practice: in relation to the performance of any of the Services, their performance to the standard of skill, care, prudence and foresight, in each case with appropriate management and control of quality that a leading professional supplier of services similar to the Services would use in the performance of those services.
   Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company and any subsidiary from time to time of a holding company of that company.
   Hosting Charges: the Charges payable by the Customer to the Supplier in consideration of the provision of the Hosting Services.
   Hosting Services: means the hosting services to be procured by the Supplier from Microsoft which allows the Customer and its end customers to access and use the Licensed Software in accordance with the terms of this Agreement and as described in Schedule 3.
   Initial Payment: the up-front payment to be made in respect of the configuration of the Licensed Software as set out in the relevant Statement of Work.
   Initial Term: means the period of twelve (12) months beginning on the Commencement Date.
   Intellectual Property Rights or IPRs: patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all existing and future rights capable of present assignment, applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
   Kit Builder Solution or System: means the Kit Builder Licenced software and all its component parts that make up the entire solution as supplied by the Supplier to the Customer and maintained by the Supplier with a unique identification number for each installed licence.
   Licensed Software: means the proprietary software applications known as “Kit Builder” and licensed by the Supplier to the Customer pursuant to this Agreement.
   Maintenance and Support Services: means any error corrections, updates and upgrades that the Supplier may provide or perform with respect to the Licenced Software and Hosting Services whether provided as a free or paid for package as set out in Schedule 2 and any relevant Statement of Work.
   Microsoft: means Microsoft Corporation, a company incorporated in California with its registered office at One Microsoft Way, Redmond, Washington, USA.
   Microsoft Azure Terms: has the meaning given in Clause 3.1.
   Prevailing Hourly Rate: The rate set from time to time by the Supplier for any charges raised by the Supplier for work that is carried out on an hourly basis. This rate applies to some of the Additional Services referred to in Section 2.2 and Schedule 4.
   Proposal: means the materials handed to the Customer supporting the Supplier’s presentation to the Customer describing how the Supplier proposes to carry out the Services and Including the Specification.
   Renewal Period: means a period of twelve (12) months beginning at the end of the Initial Period or the end of the previous Renewal Period.
   Services: means the services to be provided under this Agreement as further set out in a Statement of Work, and including the Hosting Services, the Maintenance and Support Services and any Additional Services.
   Specification: means the technical, functional and performance specifications for the Services and Deliverables including the Licenced Software, as set out in or referred to more particularly in the Proposal.
   Statement of Work: means a statement of work agreed between the Parties describing Services to be performed by the Supplier for the Customer subject to this Agreement whether set out in a separate written document or agreed on an ad hoc basis.
   Supplier’s Project Manager: the individual nominated to act as such by the Supplier from time to time and as further described in Clause 2.4.
   Supplier Relief Event: means any failure by the Customer to ensure that Customer Responsibilities are performed, and which has an impact on the ability of the Supplier to perform the Services.
   Supplier Systems: means the software, telecommunications system, hardware and other equipment owned by, or licensed to the Supplier, together with any developments, upgrades, updates, modification, variations and fixes to the same, in each case created from time to time which are to be interfaced with the Customer System as part of the Services, or otherwise used or accessed by the Supplier from time to time in connection with this Agreement.
   Templates: means the collective name for all 3D and 2D models that are the collection of one or more digital files, packaged in the form of a product or model or template. Templates can be provided free of charge at the point of purchasing the Kit Builder system or made available for purchase on the Kit Builder Website or have been newly created by the Supplier as a Bespoke template at the request of the Customer. A 2D or 3D Model may include 3D or 2D Model files, geometry, texture maps, materials, motion captures, renderings and other constituent files related to the 3D or 2D Model data and its representation.
   Template & Design Licence: means the licence granted for the use of any template or design created by the Supplier and made available for use by the Customer whether purchased as an off the shelf item or as a newly created bespoke item or provided without charge. The full details of the licence are published in Schedule 3 Authorised Use Policy.
   Term: Term means this Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with the provisions of Clause 9 for the Initial Period. Thereafter, this Agreement shall be automatically be renewed for successive periods of twelve (12) months (each a Renewal Period) unless or until the Agreement is terminated in accordance with the provisions of Clause 9.
   VAT: value added tax chargeable under English law for the time being and any similar tax.
   Virus: means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to data (whether by re-arranging, altering or erasing the programme or data in whole or part of otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
   1.2. Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
   1.3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
   1.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
   1.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
   1.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
   1.7. A reference to a statute or statutory provision is a reference to it as replaced, extended or re-enacted from time to time and includes primary and delegated legislation and any provision of EU law having direct effect or direct applicability in the UK.
   1.8. A reference to writing or written includes email.
   1.9. References to Clauses and Schedules are to the Clauses of and Schedules to this Agreement and references to paragraphs are to paragraphs of the relevant Schedule. The Schedules form part of this Agreement.
   1.10. If there is any inconsistency between the main body of this Agreement and the Schedules, the main body of this Agreement shall take precedence.
   1.11. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
   
2. Services
   2.1. In consideration of the Charges, the Supplier will provide the Services and deliver the Deliverables from the Commencement Date until the Agreement is terminated in accordance with Clause 9.
   2.2. At any time during the Term of this Agreement, the Customer may request Additional Services to be performed by the Supplier. Such Additional Services shall be set out in a Statement of Work referencing this Agreement in a format agreed by the Parties and which shall be incorporated as part of this Agreement upon execution by the Parties. See Schedule 4 Additional Services for any specific terms relating to named services or deliverables that may be provided from time to time including those set out in any Statements of Work.
   2.3. With effect from the Commencement Date, the Supplier shall provide the Services:
   2.3.1. using all reasonable skill and care;
   2.3.2. in accordance with Good Industry Practice;
   2.3.3. in accordance with all Applicable Laws; and
   2.3.4. in accordance with the applicable Statement of Work.
   2.4. The Supplier shall appoint the Supplier’s Project Manager who shall have authority to contractually bind the Supplier on all matters relating to the Services. The Supplier shall use reasonable endeavours to ensure that the same person acts as the Supplier’s Project Manager throughout the duration of the Agreement but may replace them from time to time where reasonably necessary in the interests of the Supplier’s business.
   2.5. For the avoidance of doubt, the Supplier does not warrant that the Customer’s use of the Licensed Software will meet the Customer’s data processing requirements or will be uninterrupted or error free.
   2.6. The Supplier warrants its title to and property in the Licensed Software is free and unencumbered and that it has the right, power and authority to licence the same.
   2.7. The Supplier warrants, to the best of its knowledge that the Licensed Software contains no Virus and shall continue to use appropriate anti-virus software throughout the term in accordance with Good Industry Practice in order to procure that the Licensed Software remains Virus free.
   2.8. The Supplier warrants that it shall co-operate and work collaboratively with any of the Customer’s third-party suppliers as appropriate and as directed by the Customer.
   2.9. The Supplier warrants that it shall obtain and maintain appropriate insurance policy coverage to cover Supplier’s obligations and liabilities under this Agreement and each Statement of Work.
   
3. Hosting Services, Maintenance and Support
   Hosting and Maintenance
   3.1. The Supplier shall use commercially reasonable endeavours to procure the Hosting Services utilising the Microsoft Azure platform subject to the Microsoft Azure terms set out at https://azure.microsoft.com/en-gb/support/legal/ (Microsoft Azure Terms) for the Term and in consideration of the Hosting Charges. By signing this Agreement, the Customer accepts that the provision of the Hosting Services is subject to the Microsoft Azure Terms as if they were fully set out herein.
   Maintenance and Support
   3.2. The Supplier shall provide the Maintenance and Support Services, including as set out in the relevant Statement of Work, subject to the terms and conditions of this Agreement.
   
4. Customer Responsibilities
   4.1. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Licensed Software and notify the Supplier promptly of any such unauthorised access or use.
   4.2. The Customer shall be responsible for supplying the Customer materials and other editorial content. For the avoidance of doubt, the Supplier shall not be responsible for reviewing Customer materials prior to uploading such content. The Customer shall ensure that the Customer materials are and remain fully compatible for use with the Licensed Software. Upon request from the Customer and at the Customer’s sole expense, the Supplier shall use commercially reasonable efforts to assist the Customer in resolving any content-related compatibility problem.
   4.3. The Customer shall:
   4.3.1. not knowingly store, distribute or transmit any Virus, or any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
   4.3.2. not attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Licensed Software except to the extent expressly set out in this Agreement or as may be allowed by any Applicable Laws which are incapable of exclusion by Agreement between the Parties; or
   4.3.3. not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Licensed Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties.
   4.3.4. co-operate with the Supplier in all matters relating to the Services and appoint a Customer Project Manager, who shall have the authority to commit the Customer on all matters relating to the Services;
   4.3.5. provide for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, such access to the Customer’s premises and Customer Data, and such office accommodation and other facilities, as required by the Supplier and agreed by the Customer in advance for the purposes of the Services;
   4.3.6. provide, in a timely manner, such information, items, documents, and materials in any form as the Supplier may request, and the Customer considers reasonably necessary, in order to carry out the Services and ensure that all information the Customer provides is accurate in all respects.
   4.3.7. inform the Supplier of all health and safety and security requirements that apply at any of the Customer’s premises.
   4.3.8. without affecting its other obligations under this Agreement, comply with all Applicable Laws and regulations with respect to its activities under this Agreement;
   4.3.9. ensure that the Authorised Users use the Services and Deliverables in accordance with the terms and conditions of this Agreement and the Authorised Use Policy and shall be responsible for any Authorised User’s breach of this Agreement;
   4.3.10. obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
   4.3.11. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its Customer Systems to the Supplier Systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer Systems or telecommunications links or caused by the internet.
   4.3.12. Ensure attendance at any training session that has been booked by any of the Customers staff and provide a minimum of 48 hours notice where they are unable to attend.
   4.3.13. Ensure active assistance in progressing the delivery of any project to ensure milestones are achieved. This will involve all relevant project stages such as completion of designs and customisation settings are approved to enable the next steps of the project to progress.
   4.3.14. Ensure that all charges are paid within the terms of Section 5 “Charges and payments”

4.4. If a Supplier Relief Event occurs then:
4.4.1. for as long as the Supplier Relief Event persists, the Supplier shall not be in breach of this agreement and any applicable Statement of Work; and
4.4.2. if it causes the Supplier to miss a requirement or deadline under a Statement of Work, such requirement or deadline shall be postponed by such time as is proportionate and reasonable; and
4.4.3. the Supplier shall be entitled to request compensation in respect of any material and demonstrable losses incurred as a direct result of the Supplier Relief Event.
4.4.4. The Supplier shall be entitled to raise an administration charge for any Supplier Relief Event.
4.4.5. The Supplier shall be entitled to suspend the supply of services.

5. Charges and payment
   5.1. In consideration of the performance of the Services and the Deliverables, the Supplier shall be entitled to invoice the Customer and the Customer shall pay the Charges due and payable under this Agreement or any Statements of Work.
   5.2. The Customer shall pay the Supplier’s invoices within five (5) days of the date of the invoice. Unless otherwise specified in the Statement of Work, the Supplier may invoice monthly.
   5.3. All Charges stated or referred to in this Agreement (including the Statements of Work) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
   5.4. Within five (5) working days of the Commencement Date, the Customer shall pay the Supplier the Initial Payment in full and cleared funds to the Supplier’s nominated bank account.
   5.5. If the Parties agree any Additional Services on a time-and-materials basis, the following shall apply:
   5.5.1. the charges payable for the Services shall be calculated in accordance with the Supplier’s Prevailing Hourly Rate then in force for the Supplier’s project team and as set out in the Statement of Work; and
   5.5.2. the Supplier’s standard daily fee rates are calculated on the basis of an eight-hour day worked between 8.00 am and 5.00 pm UK GMT on Business Days.
   5.6. If the Supplier’s invoices become overdue and the Customer still has not made payment five (5) days after having received notice in writing from the Supplier of the default, then without prejudice to any other rights and remedies of the Supplier:
   5.6.1. the Supplier may suspend the supply of the Services (but shall recommence them at no further cost when the delinquent invoice has been paid); and
   5.6.2. interest shall accrue daily on such due amounts at an annual rate equal to 8% over the then current base lending rate of NatWest Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   5.6.3. The Supplier shall charge an administration charge for every letter and notice of default sent in writing to the Customer.
   5.7. The Supplier will raise a monthly invoice covering:
   5.7.1. the Monthly Platform Charge, as calculated in accordance with Schedule 4; and
   5.7.2. an ongoing monthly licence fee charge, including any Quote Charge as set out in Schedule 4. These Charges shall accrue with effect from any Commencement Date as confirmed by the Supplier in writing with the Customer.
   5.7.3. any other relevant charges for additional services and deliverables set out in Schedule 4 or any Statement of Works.
   5.8. To pay the charges for any Service and deliverables, the Customer will be asked to provide a payment method at the time they sign up for that Service or at a later stage in the lifecycle of the service or deliverables. Additionally, the Customer agrees to permit the Supplier to use any updated account information regarding the selected payment method provided by the Customers issuing bank or the applicable payment network.
   5.9. The Customer agrees to promptly update their account and other information, including email addresses and payment method details, so the Supplier can complete Customer transactions and contact the Customer as needed in connection with their transactions. Changes made to the Customer billing account will not affect charges submitted by the Supplier before the Supplier could reasonably act on any changes to the Customer billing account.
   5.10. By providing a payment method, the Customer represents that they:
   5.10.1. are authorised to use the payment method provided and that any payment information is true and accurate.
   5.10.2. authorise the Supplier to charge the Customer for the Services and deliverables using the Customer payment method.
   5.11. The Customer agrees to authorise recurring payments for all ongoing usage and licence fees by the payment method provided and at such recurring intervals agreed with the Customer until the service is terminated in accordance with this agreement or related statement of works. By authorising recurring payments, the customer is authorising the Supplier to where necessary store the payment instrument and process such payments as either electronic debits or fund transfers, or as electronic drafts from your designated account (for Automated Clearing House or similar payments), or as charges to the Customers designated account (for credit card or similar payments) (collectively, “Electronic Payments”). Ongoing usage and licence fees are generally charged in advance of the applicable charge period. If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, the Supplier reserves the right to collect any applicable return item, rejection or insufficient funds fee and process any such payment as an Electronic Payment.
   5.12. The Supplier may change the price of the Services or deliverables at any time and if the Customer has a recurring charge, the Supplier will notify the Customer by email, or other reasonable manner, at least 15 days before the price change. If the Customer does not agree to the price change, the Customer must cancel and stop using the Services before the price change takes effect. If there is a fixed term and fixed price for the Service offer, that price will remain in force for the fixed term.
   
6. Intellectual Property Rights
   6.1. All Intellectual Property Rights in the Licensed Software and the Services and deliverables are owned (and shall continue to be owned) exclusively by the Supplier, and except as expressly granted herein, no right, title or interest in or to any of the same is granted, transferred or assigned to the Customer by this Agreement.
   6.2. The Supplier hereby grants to the Customer on and subject to the terms of this Agreement a non-exclusive, non-transferable licence for the Term to allow Authorised Users to access the Licensed Software through the Hosting Services and to use the Licensed Software solely in connection with the Customer’s business purposes and the terms and conditions of this Agreement. For the avoidance of any doubt, the rights granted pursuant to this Clause 6.2 are granted to the Customer and its Authorised Users only and shall not be considered granted to any subsidiary or holding company of the Customer.
   6.3. In relation to the Customer’s Property, the Customer:
   6.3.1. and its licensors shall retain ownership of all IPRs in the Customer’s Property; and
   6.3.2. grants to the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy, use and modify the Customer’s Property for the Term for the purpose of configuring and delivering the Services and the Deliverables to the Customer in accordance with the Terms of this Agreement.
   6.4. All rights, interest and title in and to the Deliverables shall transfer to the Customer by written consent from the Supplier and upon acceptance by the Customer and the Supplier shall do all things reasonably necessary to effect such transfer.
   
   6.5. The Supplier:
   6.5.1. warrants that the receipt, use and onward supply of the Licensed Software and the Deliverables by the Customer and its permitted sub-licensees shall not infringe the rights, including any Intellectual Property Rights, of any third party;
   6.5.2. shall, subject to Clause 8, indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by the Customer arising out of or in connection with any claim brought against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights, arising out of, or in connection with, the receipt, use or onward supply of the Licensed Software and Deliverables;
   6.5.3. shall not be in breach of the warranty at Clause 6.5.1, and the Customer shall have no claim under the indemnity at Clause 6.5.2 to the extent the infringement solely arises from:
   a) the use of Customer’s Property in the development of, or the inclusion of the Customer’s Property in, the Services or any Deliverable;
   b) any modification of the Services or any Deliverable, other than by or on behalf of the Supplier; and
   c) compliance with the Customer’s instructions.
   
   6.6. The Customer:
   6.6.1. warrants that the receipt and use in the performance of this Agreement by the Supplier, its agents, subcontractors or consultants of the Customer’s Property shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
   6.6.2. shall subject to Clause 8, indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred or paid by the Supplier arising out of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants for actual or alleged infringement of a third party’s Intellectual Property Rights, to the extent that the infringement or alleged infringement results from copying, arising out of, or in connection with, the receipt or use in the performance of this Agreement of the Customer’s Property.
   6.7. If either Party (Indemnifying Party) is required to indemnify the other Party (Indemnified Party) under this Clause 6, the Indemnified Party shall:
   6.7.1. notify the Indemnifying Party in writing of any claim against it in respect of which it wishes to rely on the indemnity at Clause 6.5.2 or Clause 6.6.2 (as applicable) (IPRs Claim);
   6.7.2. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPRs Claim, always provided that the Indemnifying Party shall obtain the Indemnified Party’s prior approval of any settlement terms, such approval not to be unreasonably withheld;
   6.7.3. provide the Indemnifying Party with such reasonable assistance regarding the IPRs Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party’s costs so incurred; and
   6.7.4. not, without prior consultation with the Indemnifying Party, make any admission relating to the IPRs Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPRs Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.
   
7. Confidentiality
   7.1. Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. Confidential Information shall not be deemed to include information that:
   7.1.1. is or becomes publicly known other than through any act or omission of the receiving Party;
   7.1.2. was in the other Party’s lawful possession before the disclosure; or
   7.1.3. is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
   7.1.4. is independently developed by the receiving Party, which independent development can be shown by written evidence.
   7.2. Subject to Clause 7.4, each Party shall hold the Confidential Information secret and confidential and not directly or indirectly disclose or make available any Confidential Information in whole or in part to any person, not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary or expressly permitted by, and in accordance with this Agreement.
   7.3. Each Party shall take all reasonable steps to establish and maintain adequate security measures to safeguard the Confidential Information from unauthorised access or use and to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
   7.4. A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 7.4, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
   7.5. Each party may disclose the Confidential Information to its Representatives, any of its Group Companies, or their Representatives on the basis that it: 
   7.5.1. informs those Representatives, Group Companies or their Representatives of the confidential nature of the Confidential Information before it is disclosed; and 
   7.5.2. procures that those Representatives, Group Companies or their Representatives comply with the confidentiality obligations in Clause 7 as if they were the Party to this agreement. 
   7.5.3. The disclosing Party shall be liable for the actions or omissions of the Representatives, any of its Group Companies or their Representatives in relation to the Confidential Information as if they were the actions or omissions of the disclosing Party. 
   7.6. This Clause 7 shall survive termination of this Agreement, however arising.
   
8. Limitation of liability
   8.1. Nothing in this Agreement excludes the liability of the Supplier:
   8.1.1. for death or personal injury caused by the Supplier’s negligence;
   8.1.2. for fraud or fraudulent misrepresentation; or
   8.1.3. for any liability that cannot be excluded or limited by law.
   8.2. Subject to Clause 8.1, neither Party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement.
   8.3. Subject to Clauses 8.1, 8.2 and 8.4, the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to one hundred and twenty five percent (125%) of the Charges paid in the previous twelve (12) months subject to a maximum cumulative award of Forty thousand pounds (£40,000)
   8.4. Subject to Clause 8.1, the Customer acknowledges that the Supplier is not responsible for the performance of the Hosting Services which shall be provided on and subject to the Microsoft Azure Terms, but shall use commercially reasonable endeavours to support the Customer in connection with Microsoft and achieving any service credits or other remedy which may be due to it in connection with the Hosting Services.
   
9. Term and Termination
   9.1. This Agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with the provisions of this Clause 9 for the Initial Period. Thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a Renewal Period) unless or until the Agreement is terminated in accordance with the provisions of this Clause 9 (Term).
   9.2. Either Party may terminate this Agreement in writing at any time by providing at least sixty (60) days’ written notice to the other Party, with such termination to take effect at any point on or after the end of the Initial Term.
   9.3. Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:
   9.3.1. the other Party commits a material breach of any term of this Agreement and such breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
   9.3.2. the other Party repeatedly breaches any of the terms of this Agreement 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 of this Agreement;
   9.3.3. the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
   9.3.4. the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
   9.3.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other Party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other Party with one or more other companies or the solvent reconstruction of that other Party;
   9.3.6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other Party (being a company);
   9.3.7. the holder of a qualifying floating charge over the assets of that other Party (being a company) has become entitled to appoint or has appointed an administrative receiver;
   9.3.8. a person becomes entitled to appoint a receiver over all or any of the assets of the other Party or a receiver is appointed over all or any of the assets of the other Party;
   9.3.9. a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other Party’s assets and such attachment or process is not discharged within 14 days;
   9.3.10. any event occurs, or proceeding is taken, with respect to the other Party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clause 9.3.3 to Clause 9.3.9 (inclusive); or
   9.3.11. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
   9.4. Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
   
10. Consequences of termination
    10.1. On termination or expiry of this Agreement for any reason:
    10.1.1. any licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease use of the Services;
    10.1.2. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable within thirty (30) days upon receipt;
    10.1.3. The Supplier shall use reasonable commercial endeavours to deliver any Customer Data including the back-ups in its possession to the Customer, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
    10.1.4. termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
    10.2. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.
    
11. Data Protection
    11.1. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
    11.2. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
    11.3. The Supplier shall, in providing the Services, comply with its Privacy Policy available at https://www.Kit Builder.com/privacy-policy or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.
    11.4. Both Parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.
    11.5. The Parties acknowledge that:
    11.5.1. if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation;
    11.5.2. the Supplier may process:
    a) contact details and payment information;
    b) in relation to the Authorised Users;
    c) for the purpose of performing the Services; and
    d) for the duration of this agreement and for up to 30 days afterwards; and
    11.5.3. the personal data may be transferred or stored outside the European Economic Area or the country where the Customer and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement provided Supplier adheres to clause 11.7.2 below.
    11.6. Without prejudice to the generality of clause 11.4, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of this agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf.
    11.7. Without prejudice to the generality of clause 11.4, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
    11.7.1. process that personal data only on the documented written instructions of the Customer unless the Supplier is required by the Data Protection Legislation (or any other law that applies in the UK) to process personal data (Data Laws). Where the Supplier is relying on Data Laws as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Data Laws unless those Data Laws prohibit the Supplier from so notifying the Customer;
    11.7.2. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
    a) the Supplier has provided appropriate safeguards and an appropriate lawful transfer mechanism in relation to the transfer including but not limited to incorporating the EU contractual clauses;
    b) the data subject has enforceable rights and effective legal remedies;
    c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
    d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing and transferring of the personal data;
    11.7.3. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    11.7.4. notify the Customer without undue delay, and in any event within 48 hours, on becoming aware of a personal data breach and provide the Customer with details of such breach;
    11.7.5. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by the Data Laws to store the personal data; and
    11.7.6. maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
    11.7.7. provide full cooperation and assistance to the Customer as the Customer may require allowing the Customer to comply with its obligations as a data controller under Data Protection Legislation, including in relation to data security; data breach notification; data protection impact assessments; enquiries, correspondence and consultation with supervisory authorities; fulfilment of data subject’s rights.
    11.7.8. make available all information and documentation necessary to demonstrate compliance with this clause 11 and to allow for and contribute to audits as requested by the Customer and its supervisory authority.
    11.8. Each Party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other Party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
    11.9. The Customer consents to the Supplier appointing Microsoft Azure as a third-party processor of personal data under this agreement. The Supplier will not appoint any other third-party processor of personal data under this agreement without the prior written consent of the Customer. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in this clause. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.
    11.10. Either Party may, at any time on not less than 30 days’ notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
    
12. Force majeure
    The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other Party), failure of a utility service or transport or telecommunications network, act of god, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, pandemic storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
    
13. Waiver
    No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    
14. Rights and remedies
    Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
    
15. Entire Agreement
    15.1. This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relation to its subject matter.
    15.2. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
    15.3. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Agreement.
    
16. Assignment
    16.1. The Customer shall not without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement.
    
17. Third Party rights
    No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
    
18. No Partnership or Agency
    Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture between the Parties, or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name of or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). Each Party confirms that it is acting on its own behalf and not for the benefit of any other person.
    
19. Severance
    19.1. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
    19.2. If any provision or part-provision of this Agreement is deemed deleted under Clause 19.1 the Parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    
20. Notices
    20.1. Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first class post or recorded delivery post to the other Party at its address set out in this Agreement, or such other address as may have been notified by that Party for such purposes.
    20.1.1. Any notice or communication shall be deemed to have been received:
    a) If delivered by hand, on a signature of a delivery receipt or at the time the notice is left at the proper address;
    b) If sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting or at the time recorded by the delivery service;
    c) If sent by email, as shown by the timed printout obtained by the sender.
    
21. Variation
    No variation of this Agreement shall be effective unless it is in writing and signed by the Parties or their authorised representatives.
    
22. Governing law
    This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England and Wales.
    
23. Jurisdiction
    Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
    

SCHEDULE 1
Hosting Services

1. Hosting set-up
   The set-up phase of the Hosting Services includes those services procured by the Supplier to customize, configure and test the Hosting Services, as well as the hosting facility and internet connectivity.
   
2. Continuing hosting services
   The continuing Hosting Services provided by the Supplier subject to the Microsoft Azure Terms which allow for availability of the Licensed Software, include internet connectivity (as detailed in Paragraph 4 above), load distribution management, security services, monitoring, back-up, release management and change control, and administration services.
   
3. Load distribution management
   The Supplier shall provide load-balancing services to distribute load and redundancy across application servers.
   
4. Monitoring services
   The Supplier shall provide, 24 hours a day and seven days a week, monitoring of the computing, operating and networking infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, load-balancing monitoring, web server and database monitoring, firewall monitoring, and intrusion detection.
   
5. Back-up, archiving and recovery services
   The Supplier shall develop the back-up schedule, perform scheduled nightly back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least weekly full back-ups and daily incremental back-ups. In the event of data loss, the Supplier shall provide recovery services to try to restore the most recent back-up within four (4) hours of becoming aware of the issue during the hours of 9:00 – 17:00 GMT Monday to Friday, and outside of that time, as soon as is reasonably practicable thereafter.
   
6. Release management and change control
   The Supplier shall provide release management and change control services to ensure that versions of servers, network devices, storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by the Supplier to maintain the Hosting Services.
   
7. Availability
   Subject to the Microsoft Azure Terms, the Supplier shall use reasonable endeavours to maintain 99% availability of the Hosting Services 24 hours a day.
   

SCHEDULE 2
Support and Maintenance Services

1. A free Kit Builder support package is included within the Charges.
   
2. The Customer may issue a support request via:
   a) An email being sent to support@Kitbuilder.com
   b) A support ticket being raised from within the Customers own Kit Builder System.
   
3. The “Free” support package covers:
   a) Reporting of any Bug fixes which will then be scheduled for fixing
   b) Access to the Kit Builder Knowledge Base
   c) Access to the Kit Builder Training Video Library
   d) A maximum of 10 support requests covering general advice on how to perform tasks or amend settings within the Kit Builder solution.
   
4. The Supplier has the right to resolve any support requests by providing links to existing articles, notes or videos where it is relevant to the request.
   
5. For the avoidance of doubt the “Free” support package does not cover:
   a) Fixing Issues that result from the Customer’s own actions and more specifically but not exclusively using incorrect settings, incorrectly configuring artwork and incorrectly configuring Templates.
   b) Fixing Customer Product Design Issues that require third party software to make the fix.
   c) Fixing Customer Template Issues that require third party software to make the fix.
   d) Customer Requested Kit Builder Feature Upgrades or new feature requests.
   e) Providing other Services free of charge that the Supplier would ordinarily raise a charge for. An example of which, but not exclusively, is creating or uploading Templates and Designs, custom development, custom styling, and bespoke marketing documents.
   
6. The Customer agrees to submit each support request to include a description of the problem and the start time of the incident and sufficient information that enables the Supplier to re-create the issue as per point 9.
   
7. The Supplier will perform a validation check on each support request submitted in order to determine if the request falls within the free support package. The Supplier will request further information where the validation check cannot be performed.
   
8. The Supplier is entitled to raise a charge for any support request not covered by the free support package. The Supplier may offer the Customer the opportunity to purchase a support package that will cover the cost of the chargeable support request as well as extending further benefits based on the package purchased.
   
9. The Customer shall provide the Supplier with:
   a) prompt notice of any faults; and
   b) such output and other data, documents, information, assistance and (subject to compliance with all Customer’s security and encryption requirements notified to the Supplier in writing) remote access to the Customer’s IT system, as are reasonably necessary to assist the Supplier to reproduce operating conditions similar to those present when the Customer detected the relevant fault.
   
10. The Supplier shall:
    a) monitor the system 24 hours a day, 365 days a year;
    b) provide an initial response to a support request:
    i. during the hours of 9:00 – 17:00 GMT Monday to Friday within eight hours from the time of the request being received; or
    ii. outside of working hours, 8 hours from 9:00 GMT which is the start of the following working day.
    c) use commercially reasonable endeavours to reinstate the Hosting Services as soon as is reasonably practicable after being notified that it is not functioning.

SCHEDULE 3
Authorised Use Policy
The following Authorised Use Policy (AUP) outlines acceptable and unacceptable use of the Licensed Software.

1. The Supplier may make reasonable modifications to the AUP from time to time by posting a new version of this document on the Supplier’s website at the then current URL. Revisions are effective immediately upon posting. Accordingly, we recommend that you visit the Supplier’s website regularly to ensure that your activities conform to the most recent version.
   
2. Questions about this AUP (e.g., whether any contemplated use is permitted) and reports of violations of this AUP should be directed to support@magnetize.co.uk
   
3. The examples listed in this AUP are not exhaustive. Prohibited uses and activities include, without limitation, any use of the Services in a manner that, in the Supplier’s reasonable opinion involves, facilitates, or attempts any of the following:
   a) violating any law of, or committing conduct that is tortuous or unlawful in, any applicable jurisdiction;
   b) displaying sending, receiving or storing any content that is obscene, pornographic, lewd, lascivious, or excessively violent, regardless of whether the material or its dissemination is unlawful;
   c) advocating or encouraging violence against any government, organization, group, individual or property, or providing instruction, information, or assistance in causing or carrying out such violence, regardless of whether such activity is unlawful;
   d) accessing, sending, receiving, displaying, performing, disclosing, storing, or executing any content a) in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right, b) in violation of any applicable agreement, or c) without authorization;
   e) deleting or altering author attributions, copyright notices, or trademark notices, unless expressly permitted in writing by the owner;
   f) obtaining unauthorized access to any system, network, service, or account;
   g) interfering with service to any user, site, account, system, or network by use of any program, script, command, or otherwise;
   h) introducing or activating any viruses, worms, harmful code and/or Trojan horses;
   i) sending or posting unsolicited messages or e-mail, whether commercial or not: a) to any recipients who have requested that messages not be sent to them; or b) to a large number of recipients, including users, newsgroups, or bulletin boards, at one time;
   j) evading spam filters, or sending or posting a message or e-mail with deceptive, absent, or forged header or sender identification information;
   k) holding the Supplier or its affiliates up to public scorn or ridicule; and/or
   l) reselling the Supplier’s services, in whole or in part, to any entity or individual, without Supplier’s prior written consent, or misrepresenting your relationship with the Supplier.
   
4. For every user account created in Kit Builder, the Customer provides the user’s first name, last name, and email address. No other personal information is collected or used by the Supplier. Names are used to identify users within the system (e.g., content authors, for sharing, reporting, etc.). Email addresses are used as unique logins for each user as well as for sending email notifications.
   
5. Template and Design Licence
   a) This section under point 5 forms part of the Authorised Use Policy and sets out the specific authorised use for Templates and Designs created by the Supplier as a component part of the overall Licenced Software.
   b) All templates and designs are provided royalty free unless otherwise stated. This means that, after Purchasing the template or design, you are not required to make any future payments (or pay further royalty fees) and you may use the templates and designs in accordance with this Template and Design Licence as well as the wider Authorised Use Policy and the entire agreement of which this forms a part.
   c) A template or design can only be used with the Kit Builder system whether purchased, provided free of charge or created bespoke for the customer.
   d) The templates and designs made available for the Customers Kit Builder system are authorised for use on any paid distributor licences accessible under the Customers Kit Builder system. They are not authorised for use on another separate Kit Builder system. The Templates and Designs will need to be purchased again for each and every separate Kit Builder System
   e) The Supplier does not grant title or ownership in Templates or Designs. All rights in Templates and Designs not expressly granted in this agreement are reserved by the Supplier for itself.
   f) The Supplier grants to the Customer a non-exclusive, perpetual, worldwide right and license to copy, distribute, adapt, publicly display, publicly perform, digitally perform, transmit, broadcast, telecast, advertise, and market Templates and Designs within its Kit Builder system in the uses authorised in this agreement.
   g) The Supplier can request authorisation for a use not covered by this agreement (“New Use”) by writing to sales@kitbuilder.com and detailing in writing the specific use required. The Supplier is authorised to approve a New Use if the Supplier finds in its sole judgment that the New Use is substantially similar to another established use in this agreement and authorises the New Use in writing.
   h) The Customer is prohibited from sharing any Templates or Designs other than in the following situations and with the following restrictions:
   a) In the production of a Creation owned by The Customer, if the Customer is working in collaboration with external parties, and there is a need to share Templates or Designs for the development and production of the Customer’s Creation, sharing Templates or Designs with those external parties is allowed. Any external party that receives Templates or Designs may only use Templates or Designs on the Customers Creations for use in the Kit Builder System and must take reasonable care to secure and limit access to Templates or Designs to that purpose.
   i) The Supplier does not own or license any Depicted Intellectual Property contained within a Template or Design. The Supplier does not in any way make any representations or warranties about Depicted Intellectual Property associated with Templates and Designs. The Customer is solely responsible for determining the need for and, if appropriate, obtaining any needed clearance, consent, or release to use any Depicted Intellectual Property in their Creations.
   j) Subject to the following restrictions, the Customer may use Creations of Imagery from Templates and Designs within news, film, movies, television programs, video projects, multi-media projects, theatrical display, simulation and training, corporate communications, marketing collateral, tradeshow promotional items, booth decorations and presentations, pre-visualizations, mobile, web, print, television, and billboard advertising; online and electronic publications of blogs, literature, social media, and email campaigns; website designs and layouts, desktop and mobile wallpapers, screensavers, toolbar skins; books, magazines, posters, greeting cards; apparel items, brochures, framed or printed artwork, household items, office items, lenticular prints, product packaging and manufactured products.
   a) The customer may NOT use a Promotional Image that has any added element which is not included as part of the Template or Design.
   b) The Customer may NOT use any Promotional Image that has a logo, mark, watermark, attribution, copyright or other notice superimposed on the image without prior approval from the Supplier in writing.
   c) The Customer may NOT re-distribute, publish, or sell Templates or Designs to any third party except in the form of a permitted Creation, or shared as authorized in this agreement.
   d) The Customer may NOT use Templates or Designs for any defamatory, harassing, pornographic, obscene, or racist purpose, or to infringe any party’s Depicted Intellectual Property rights.
   e) The Customer may NOT misrepresent itself as the creator of Templates or Designs.
   k) Any event that results in cancellation or a payment reversal for Templates and designs immediately terminates all rights granted under this Template and Design agreement. For the avoidance of doubt this would include the Suppliers right to cancel the use of a Free template or design for any reason whatsoever.
   l) Material failure to abide by the terms of this agreement immediately terminates the Customer’s right and license to Templates and Designs. There will be no amounts due to the customer paid by the Supplier in the event of a cancellation or withdrawal of licence on a specific template or design.
   m) The Customer covenants, represents and warrants to the Supplier that they will not use Templates or designs except pursuant to the terms of this agreement. Should they use templates or designs in an unauthorized way, the customer agrees to any reasonable fee or penalty exercised by the supplier under this agreement or applicable law.
   n) The customer will prior to Purchase, determine the need for and, if appropriate, obtain any needed third-party clearance, consent, or release to use Depicted Intellectual Property shown in the digital rendering of templates and designs and shall not use templates and designs to infringe any party’s Depicted Intellectual Property rights.
   o) Templates and designs are provided on an “as is”, “as available”, and “with all faults” basis. The Supplier makes no representations, warranties, conditions, or guarantees as to the usefulness, quality, suitability, truth, fitness for a particular purpose, non-infringement, merchantability, or cosmetic attributes of templates and designs, and does not guarantee the accuracy or completeness of specifications associated with template and designs, including measurements, weight, durability, strength, materials, general physical properties, regulatory compliance, other engineering or construction attributes.

SCHEDULE 4
Additional Services
The following additional services and deliverables have the following specific terms and conditions in addition to the main agreement set out above.

Distributor Licence

1. A Distributor licence can be supplied as an additional kit builder system linked to the Customers’ main Kit Builder system with settings controlled from within the main Kit Builder system.
   
2. The Supplier will charge an initial set up fee followed by an ongoing fixed monthly licence fee per distributor added. The charge applies when the distributor is created.
   
3. Any Distributor or additional licence is provided solely for the purpose of controlling the distribution of the customers own products down through the additional licence allowing this distributor licence to be used by the customers own product distributor.
   
4. A Distributor licence cannot be sold on to a third party for their use as a primary kit builder solution. Each kit builder system must be sold by the Supplier at the full list price.
   
5. In the event that a Distributor licence has been sold on to a third party for their use as a primary Kit Builder solution then the Customer agrees to make a payment to the Supplier for a charge that represents the full list price of the Kit Builder solution provided to the third party.
   

Distributor Multi Site Licence

1. The Supplier can provide the customer with the ability to add more than 5 distributor licences with a single purchase of a multi licence. The agreement to provide a multi licence does not alter any of the terms under the authorised usage.
   
2. The Supplier will charge an initial set up fee followed by an ongoing fixed monthly licence fee per distributor added. The charge applies when the distributor is created.
   
3. Any Distributor or additional licence is provided solely for the purpose of controlling the distribution of the customers own products down through the additional licence allowing this distributor licence to be used by the customers own product distributor.
   
4. A Distributor licence cannot be sold on to a third party for their use as a primary kit builder solution. Each kit builder system must be sold by the Supplier at the full list price.
   
5. In the event that a Distributor licence has been sold on to a third party for their use as a primary Kit Builder solution then the Customer agrees to make a payment to the Supplier for a charge that represents the full list price of the Kit Builder solution provided to the third party.

White Label

1. The Supplier can provide a service to allow the Customer to represent the kit builder system as if the customer had built their own solution.
   
2. The supplier will use their best endeavours to hide the Suppliers details giving the appearance that ownership is with the Customer and branded to the customer details.
   
3. The Supplier cannot guarantee the Suppliers anonymity.
   

Project Management Fee

1. The Supplier agrees to provide a project manager who the Supplier believes to be sufficiently experienced and knowledgeable about the Kit Builder solution to attend project meetings with the customer.
   
2. The Customer agrees to set out the amount of time required based on a fixed length meeting time and the frequency of those meetings.
   
3. The Supplier will charge and the Customer agrees to pay a fixed fee using the Suppliers prevailing labour rate.
   
4. The Supplier only agrees to one person in attendance at the meetings. Any additional staff required by the customer will be subject to a charge to cover the cost of the additional member of staff at the prevailing labour rate.
   
5. The Supplier will use best endeavours to schedule meetings at the time and frequency requested by the customer.
   
6. The Customer agrees to attend the project meetings at the agreed time and on the agreed dates.
   
7. If the customer fails to attend an already scheduled meeting then the Supplier has the right to raise a charge or treat the occurrence as fulfilment of any pre-paid service.
   
8. Any additional time required by the Customer will be charged at the Suppliers prevailing labour rate for every additional hour used.
   

Bespoke, Free and Off the Shelf Designs

1. The Supplier offers the service of converting the Designs provided by the Customer, creating new bespoke designs or providing off the shelf ready made designs to be used within the Kit Builder solution. This work covers the creation of the design file and then the uploading of the file into the Customers Kit Builder solution. These terms apply to all Designs regardless of whether the Supplier has levied a charge or not.
   
2. Where the Customer places an order with the Supplier to create a bespoke design the Customer agrees to provide the minimum required information and follow the process laid down by the Supplier and agrees to the following terms:
   a) The Supplier will provide the list of items required from the Customer that represent the minimum required information before any work can commence and within a reasonable time frame as possible after the order has been placed. The Customer agrees to provide the minimum required information within 7 days of receiving the list from the Supplier.
   b) Work will only commence once all information is received by the Supplier and the order has been fully paid for by the customer. Failure to provide any of the required information will result in a delay in commencing the work.
   c) If the full information is not received within 30 days then the Supplier has the right to cancel the order and raise a fee for any work carried out within that 30 day period and raise an administration charge for time spent handling the order and communicating with the Customer.
   d) The Supplier will create a first draft of the Design based on the information provided by the Customer. The Customer is required to review the draft design and provide a list of any items that they wish to be amended or added to meet the original order specification based on the original information provided.
   e) The Supplier will provide to the customer a notice of which review items will be carried out and which items will not. The Supplier will provide a reason for any items that they are not able to complete. The only reasons that the Supplier can exclude review items are for items that are not technically achievable due to limitations of the software or items that are new elements being introduced that were not part of the original order.
   f) The Supplier has the right to raise an additional charge for any new elements to be incorporated after the work has started and not allowed for within the original scope of work.
   g) The Supplier will provide a final design after carrying out the agreed review items. This will complete the work and satisfy the order. If the Customer wishes to raise any further review items, then the Supplier will have the right to charge for all additional items carried out. The Customer may request an estimate of costs before the additional work commences. In the event that no such request is received then the Supplier will charge for each hour spent in completing the work.
   h) For the avoidance of doubt the Supplier agrees to one round of edits as agreed per step e before producing the final design and any further changes are chargeable.
   
3. Where the Customer places an order for an off the shelf design the following terms apply:
   a) The Customer agrees to make payment for the design before the design is made available for use.
   b) the Supplier agrees to add the chosen design file within their Kit Builder system.
   
4. All designs created by the Supplier will be subject to the Authorised Use Policy set out in Schedule 3 and in particular the Template and Design Licence terms contained within the Authorised Use Policy.
   

Bespoke, Free and Off the Shelf Templates

1. The Supplier provides the service of allowing customers to purchase ready made off the shelf templates. The Supplier can also create bespoke templates at the customers request for an agreed charge and in certain situations the Supplier can provide templates without charge. These terms apply to all Templates regardless of whether the Supplier has levied a charge or not.
   
2. Where the Customer places an order with the Supplier to create a bespoke template the Customer agrees to provide the minimum required information and follow the process laid down by the Supplier and agrees to the following terms:
   a) The Supplier will provide the list of items required from the Customer that represent the minimum required information before any work can commence and within a reasonable time frame as possible after the order has been placed. The Customer agrees to provide the minimum required information within 7 days of receiving the list from the Supplier.
   b) Work will only commence once all information is received by the Supplier and the order has been fully paid for by the customer. Failure to provide any of the required information will result in a delay in commencing the work.
   c) If the full information is not received within 30 days then the Supplier has the right to cancel the order and raise a fee for any work carried out within that 30 day period and raise an administration charge for time spent handling the order and communicating with the Customer.
   d) The Supplier will create a first draft of the Template based on the information provided by the Customer. The Customer is required to review the draft template and provide a list of any items that they wish to be amended or added to meet the original order specification based on the original information provided.
   e) The Supplier will provide to the customer a notice of which review items will be carried out and which items will not. The Supplier will provide a reason for any items that they are not able to complete. The only reasons that the Supplier can exclude review items are for items that are not technically achievable due to limitations of the software or items that are new elements being introduced that were not part of the original order.
   f) The Supplier has the right to raise an additional charge for any new elements to be incorporated after the work has started and not allowed for within the original scope of work.
   g) The Supplier will provide a final template after carrying out the agreed review items. This will complete the work and satisfy the order. If the Customer wishes to raise any further review items, then the Supplier will have the right to charge for all additional items carried out. The Customer may request an estimate of costs before the additional work commences. In the event that no such request is received then the Supplier will charge for each hour spent in completing the work.
   h) For the avoidance of doubt the Supplier agrees to one round of edits as agreed per step e before producing the final template and any further changes are chargeable.
   
3. Where the Customer places an order for an off the shelf template the following terms apply:
   a) The Customer agrees to make payment for the template before the template is made available for use.
   b) the Supplier agrees to add the chosen template file within their Kit Builder system.
   
4. All Templates created by the Supplier will be subject to the Authorised Use Policy set out in Schedule 3 and in particular the Template and Design Licence terms contained within the Authorised Use Policy.
   

Bespoke Development

1. The Customer can request special projects to cover a unique piece of development that is tailored to their own way of working or unique requirements. This service is only available to customer on the professional version of the software. Any customers on the Essential version will first be required to upgrade their package to take advantage of this service.
   
2. The Supplier uses their best endeavours to estimate how long the Customer requested development will take. The Supplier will raise an invoice based on this estimate but It cannot guarantee completion within the estimated time. If the work is completed in less than the estimated time, the Supplier will issue a credit note for the time saved.
   
3. The Customer agrees to an estimated budget and understands that further payment may be required if the project extends beyond the estimated hours.
   
4. In the event that the Customer requires a fixed fee or has a specific budget limit then the Supplier will agree to a fixed number of hours with a built in contingency of additional hours that it can commit to completing the agreed project. The Supplier will not issue a refund of hours not used where the fee has been fixed.
   
5. In order to undertake bespoke development work then there is a minimum fee requirement which will be discussed as part of the quotation. If the work required does not meet the minimum fee requirement then the request will be put forward to the development panel for future consideration and possible inclusion in a future release.
   
6. Any development undertaken by Kit Builder will remain the Intellectual property of the Supplier. The Supplier has the right to include the bespoke development in a future release.
   
7. If the Customer chooses not to proceed with all or any of the bespoke development the Supplier has the right to incorporate the request into a future release.
   
8. At any point in time the Supplier has the right to adopt any suggestion or ideas on future development as their own and develop the idea into a future release.
   
   

Advanced CSS work

1. The Supplier provides a default standard Cascading Style Sheets (CSS) for the Kit Builder Solution. Kit Builder uses a default font (currently set to Roboto) and default colours for the text and buttons.
   
2. The Customer can request a change of font to any acceptable Web Safe font.
   
3. The Customer can select a change of colour for the font and buttons.
   
4. The simple changes allow the styling to better suit the Customers own website. If the Customer wishes to further customise the styling to better integrate to their own website then they must request these changes in writing to the Supplier and the changes will be subject to an additional charge.
   
5. Any additional changes to any aspect of styling will be considered by the Supplier and the Customer will be notified of the changes that are achievable by the Supplier. If the Customer wishes to go ahead with the changes then the Supplier will raise a charge for an estimate of the time required to make the changes. This charge will be raised at the prevailing hourly rate.
   
6. The Supplier uses their best endeavours to estimate how long the Customer requested styling will take. It cannot guarantee completion within the estimated time but if the work is completed in less than the estimated time, the Supplier will issue a credit note for the time saved.
   
7. The Customer agrees to an estimated budget and understands that further payment may be required if the project extends beyond the estimated hours.
   
8. In the event that the Customer requires a fixed fee then the Supplier will only agree to a fixed number of hours with a built in contingency of additional hours that it can commit to completing the agreed project. The Supplier will not issue a refund of hours not used where the fee has been fixed.
   
9. In order to undertake advanced CSS work then there is a minimum fee requirement which will be discussed as part of the quotation. If the work required does not meet the minimum fee requirement, then the Customer still has the option to undertake the work using their own or third party suppliers there is an existing feature that allows customer configuration directly within Kit Builder or driven from their own website styles.
   

Bespoke Marketing PDF

1. The Supplier provides a PDF document template that can be used by the Customer to publish a document to market their products. The template Included has a default style and layout that allows the Customer to upload their own logo and name and address details to populate the templated document.
   
2. The Customer can request and pay for a new PDF document template to be created in a format and style to the Customers choice.
   
3. Any changes to the existing PDF template or creation of a new PDF template will incur a charge from the Supplier.
   
4. The Supplier will raise a fixed charge for the work. The fixed charge allows for a reasonable level of complexity.
   
5. Where the Supplier deems the requested PDF template to be above a reasonable level of complexity then the Supplier will raise an additional charge for the additional work required to complete the work.
   

Customisation journey

1. The Customer can request help in setting up the customisation journey for its product or products on the understanding that the Supplier will raise a charge.
   
2. The Supplier will raise a charge for an estimate of the time required in amending the settings to create the Customisation journey. This charge will be raised at the prevailing hourly rate.
   
3. The Supplier uses their best endeavours to estimate how long the Customer requested customisation will take. It cannot guarantee completion within the estimated time but if the work is completed in less than the estimated time, the Supplier will issue a credit note for the time saved.
   
4. The Customer agrees to an estimated budget and understands that further payment may be required if the project extends beyond the estimated hours.
   

Training

1. The Customer can request additional training at any time over and above the training provided as part of setting up the Customers Kit Builder Solution.
   
2. Any additional training will be charged at the prevailing hourly rate and payment must be made in advance of booking a training date.
   
3. The Supplier and Customer can agree a suitable time and date convenient to both parties and this will be the Set Training Date.
   
4. Both Parties can amend the Set Training Date by giving each other a minimum of 48 hours notice.
   
5. If the Customer fails to give sufficient notice and fails to attend the training on the Set Training Date then the charge will still apply and there will be no refund of payment already made.
   
6. All training is delivered online and within working hours between 09.00 and 16.00 GMT.
   

Additional Support packages

1. The Customer can purchase additional support at the point in time they require help or in advance or anticipation of needing extra support.
   
2. The Customer can select from available packages at the time or create their very own bespoke package.
   
3. Support Package charges are dependent on the following components:
   a) The different type of work you choose to be included.
   b) The number of hours support time included.
   c) The additional ways of requesting support.
   d) The first response time for a support request.
   e) The working hours that support requests can be actioned.
   f) The length of time in months that the support package covers.
   
4. The Supplier has the right from time to time to bundle together the above components from point 3 in different ways to be included in a fixed price support package and offer these to the Customer.
   
5. The Customer can create a custom support package choosing from the following components subject to the availability at the time of purchase:
   a) Work types – Designs, Templates, Project Management, Training and Development.
   b) Hours – 12 hours, 24 hours, 48 hours, 96 hours or any value of hours over 100 hours.
   c) Way to request – Email, Ticket, Live chat or Telephone.
   d) Response time in working hours – 8 hours, 4 hours, 2 hours, 1 hour.
   e) Working hours defined as – GMT 09.00 – 17.00, Each additional hour beyond 18.00.
   f) Package period – 6 months, 12 months, 18 months, 24 months.
   
6. The Supplier cannot guarantee the completion of any individual support request within the number of hours purchased as part of the Customers support package.
   
7. Where the Supplier identifies that the time required for the support request will exceed the hours available under the support package the Supplier will advise the client before completing the work. The Supplier will offer the Customer the option to: purchase a further support package that will cover the required time; or carry out the individual support request as a separate chargeable piece of work; or cancel the support request.
   
8. The Customer has the right to cancel an individual support request indicating that it is no longer required for whatever reason, however the time that the Supplier has spent up to and immediately prior to the cancellation will be charged against the Customer Support package reducing the remaining hours available for further support requests.
   
9. Any work carried out by the Supplier for any support request will be subject to the terms and conditions of the related additional service as well as the support package terms and conditions and the wider terms of this agreement. By way of an example the support request may require the alternation or creation of a template, and this will be carried out subject to the terms in this agreement covering the Bespoke, Free and Off the Shelf Templates and the Template and Design Licence under the authorised use policy.
   

Fixed Monthly Licence Fees

1. The Supplier charges an ongoing monthly licence fee that enables the Customer to enjoy ongoing use of the Kit Builder solution. The licence fee is also referred to as the Quote, Essential, Professional, Print Automation “Monthly Fee” depending on what version of the software the Customer is operating. All terms together mean the licence.
   
2. The Customer can request to pay for the licence fee on an annual basis.
   
3. All Licence fees must be paid for in advance of the period covered by the licence payment. Failure to keep up with licence fees as they fall due will result in the supply of services being suspended.
   

Usage Fees

1. The Supplier charges a monthly fee based on the level of usage by the Customer.
   
2. Usage charges (sometimes referred to as Platform Charges) can be measured by the value of e-commerce sales, by the volume of enquiries or by the volume of print files generated depending on which version of the software the Customer is operating.
   
3. The Supplier will notify the Customer which measure forms the basis of the charge at the start of the agreement and this will remain the measure for the entire length of the agreement.
   
4. Where the measure basis is the value of e-commerce sales:
   a) the Customer is responsible for enabling the tracking of their confirmed sales by setting up tracking correctly with their independent ecommerce system or platform before any orders are generated on the Kit Builder solution.
   b) Where the Customer fails to put in place the e-commerce tracking for any month the Supplier is entitled to raise a charge against all orders raised on the Kit Builder solution regardless of whether they resulted in a confirmed sale. If the Supplier is not able to use the Kit Builder solution to identify the value of orders then it may use any reasonable basis to raise an estimated charge for the month. The Customer must pay the estimated charge and can only amend an estimated charge by providing independent third party evidence of the actual confirmed sales to replace the estimated measure and in any case only after payment of the estimated charge has been made within the normal payment terms. The Customer has no right to withhold payment only on the basis that it is an estimated charge.
   c) Usage charges will be based on E-commerce Sales within bandings charged at a percentage rate.
   d) The Supplier will from time to time increase the e-commerce sales bandings to reflect the rise on prices from inflation.
   
5. The Usage or Platform Charge will be invoiced on a monthly basis in arrears.
   
6. For the purposes of this Schedule 4 a “Financial Year” shall mean any 12 month period starting on the Commencement Date and on each anniversary of the Commencement Date; and “Annual Revenue” shall mean the total sales revenue for all orders placed through the Kit Builder Solution or where the Kit Builder Solution was involved in the sale.
   
7. The Usage or Monthly Platform Charge, as invoiced shall be calculated as follows:
   a) at the start of each Financial Year the Customer shall provide the Supplier with a forecast of the Annual Revenue (the “Forecasted Annual Revenue”)
   b) The Forecasted Annual Revenue shall determine the Platform cost banding Percentage. (the “Percentage”).
   c) The Percentage shall be applied to the actual monthly revenue as achieved by the Customer through the hosted Kit Builder Solution and shall determine the amount of the Monthly Platform Charge.
   d) The Customer may update the Supplier in relation to any anticipated jump or fall in the Forecasted Annual Revenue (a “Change”), which will affect the Percentage as per paragraph 7b above. From the date the Customer informs the Supplier of the Change, the Supplier shall apply the new Percentage to calculate the Monthly Platform Charge.
   e) At the end of each Financial Year the Supplier and Customer shall together review the actual Annual Revenue figure (the “Actual Annual Revenue”) and make any necessary adjustment to the Monthly Platform Charges already levied for that Financial Year, as set out below (the “Reconciliation”).
   f) In the event that: (i) the Actual Annual Revenue is more than the Forecasted Annual Revenue; and (ii) as a result the Percentage used to calculate the Monthly Platform Charges paid by the Customer is more than the actual Percentage applied, then the Supplier shall be entitled to raise an additional invoice for the discrepancy.
   g) In the event that: (i) the Actual Annual Revenue is less than the Forecasted Annual Revenue; and (ii) as a result the Percentage used to calculate the Monthly Platform Charges paid by the Customer is less than the actual Percentage applied, then the Supplier shall issue a credit note to be used to offset future Monthly Platform Charges or where the Agreement has been terminated or expired shall issue the Customer with a refund.
   h) The Reconciliation will take place within 30 days of the end of the Financial Year and any invoice, credit note or refund required to be issued by the Supplier shall be raised within 14 days of the date of the Reconciliation.
   
8. The Quote Charge is a usage fee based on the volume of enquiries and
   a) The Quote Charges will be invoiced at the end of each month, itemised by distributor id, commencing on the Commencement Date for ongoing usage of the hosted Kit Builder Solution.
   b) The Quote Charges are to be calculated by the Supplier with reference to volume bandings of “Monthly quantity of quotes generated from the Kit Builder hosted solution across the customer portfolio using the Quote form, Email a friend request, and Marketing PDF,” and as measured against the actual recorded quantities of click through of use of the hosted Kit Builder Solution.
   
9. The Print File charge is a usage fee based on the number of print files generated for output.
   a) The Print File Charges will be invoiced at the end of each month, commencing on the Commencement Date for ongoing usage of the hosted Kit Builder Solution.
   b) The Print File Charges are to be calculated by the Supplier with reference to the actual recorded quantities of print files generated from within the Customers own Kit Builder Solution.
   
10. All Usage charges are based on the combined volumes from all distributor licences as well as the Customers main Kit Builder solution.