These Conditions (as defined below) apply to the provision by Pentiq to the Client of the Services, as detailed in the Order Form.

1. INTERPRETATION

1. The definitions and rules of interpretation in this Clause apply to these Conditions.

Acceptable Use Policy: Pentiq’s acceptable use policy at www.pentiq.com/legals (as amended from time to time).

Additional Usage: any additional use of the Third Party Services and/or Platform in excess of the minimum number of Authorised Access.

Agreement: these Conditions together with the Order Form(s), any quotes, and any other documents agreed between the Parties in writing.

Applicable Data Protection Laws:

2. To the extent the UK data protection legislation applies, all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
3. To the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which Pentiq is subject, which relates to the protection of personal data.

Applicable Laws: all applicable laws, statutes, regulations from time to time in force which relate to the business of the applicable Party.

Assumptions: has the meaning given in Clause 7.6.

Authorisation to Test Form: means Pentiq’s Authorisation to Test form in force from time to time in the format as required by Pentiq from time to time.

Authorised Access:any user entitled to use of the Platform and, or Third Party Services as permitted by Pentiq and set out in the Order Form.

Authorised Representative: the person nominated by each Party in accordance with this Agreement.

Background Materials: all Intellectual Property Rights, know-how, information, algorithms, methodologies, techniques, tools, equipment, schemata, designs, diagrams, ways of doing business, trade secrets, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, instructions manuals and procedures (including, but not limited, to software in source and object code forms, documentation, and data of whatever nature and in whatever media) owned, developed or controlled by Pentiq which may have been created outside the scope, or independently of, the Services and/or this Agreement, and including all updates, modifications,  derivatives or future developments thereof, and any related Intellectual Property Rights throughout the world (whether owned by or licensed to Us), including but not limited to any derivative works, improvements, enhancements or extensions of that proprietary technology.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Business Systems: the information technology and communication systems, including networks, hardware, software and interfaces owned by, or licensed to, the Client or any of its agents or contractors.

Change Request: any request to alter the Services pursuant to this Agreement as set out in Clause 5.

Client: the Client as identified in the Order Form.

Client Data: any information that is provided by the Client to Pentiq or accessible by Pentiq as part of the Services, including any information derived from such information, including data in or available through the Client’s System, Business Systems and, or uploaded by or on behalf of the Client to the Platform. 

Client Personal Data: any personal data which Pentiq processes in connection with this Agreement, in the capacity of a processor on behalf of the Client.

Client Site: the location(s), if any, where the Services are provided, as identified in the Order Form. 

Client’s System: the Client’s computing environment (consisting of hardware and software) systems, premises, applications, infrastructure and networks which the Client requires to be security tested in order for Pentiq to undertake the Services, including any of the Business Systems, accessed or available as part of the Services.

Commencement Date: the date of the Agreement as specified in the Order Form.

Commissioner: the Information Commissioner (see section 114, DPA 2018).

Computer Crime: any criminal activity or unauthorised actions related to computer systems, networks, or data, including but not limited to hacking, malware, data breaches, denial of service attacks, and other cyberattacks and including any such activity and, or cyber-attacks pursuant to and as regulated by the Computer Misuse Act 1990.

Conditions: means these Terms and Conditions for Services.

Confidential Information: all confidential information (however recorded or preserved) disclosed by a Party or its employees, officers, representatives, advisers or subcontractors involved in the provision or receipt of the Services (together, its “Representatives”) to the other Party and that Party's Representatives in connection with this Agreement which information is either labelled as such or should reasonably be considered as confidential because of its nature and the manner of its disclosure.

Data Processing Agreement or DPA: the data processing agreement entered into between the Parties or incorporated into this Agreement, as amended or replaced from time to time, which governs Pentiq’s Processing of Client Personal Data on behalf of the Client in connection with the Services.

Deliverable(s): reports, including any supporting evidence where applicable, developed by Pentiq or its agents, subcontractors, consultants and employees in relation to the Services in any form, including reports and drafts as specified in the Order Form.

Dispute Resolution Procedure: the procedure described in Clause 28.

End User: the party identified in the Order Form as the actual customer and recipient of the Services, where such End User is not the Client and not a Party to this Agreement.

EU GDPR: the General Data Protection Regulation ((EU) 2016/679).

Fees: the fees payable to Pentiq, as described in the Order Form or as otherwise agreed in writing as may be varied from time to time pursuant to the terms of this Agreement.

Force Majeure Event: has the meaning given in Clause 19. 

Good Industry Practice: the standards of a skilled and experienced provider of services similar or identical to the applicable Services, having regard to factors such as the nature and size of the Parties, the type of service, Service Level Arrangements, the term, the pricing structure and any other relevant factors. 

Hardware: as applicable, all physical and virtual telecommunications, networking and computer equipment (including wireless testing devices, switches, routers, cables, servers, racks, cabinets and peripheral accessories), whether of Pentiq or Client, used by Pentiq to deliver the Services to the Client.

Initial Term: the period of the Agreement commencing on the Commencement Date or the Services Commencement Date (as the case may be) and ending on the date twelve (12) months thereafter unless otherwise specified in the Order Form, including, which may be on the completion of the Services.

Intellectual Property Rights or IPR: any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world now or in the future, in each case for their full term, together with any future rights and renewals or extensions.

IPR Claim: a claim by a third party arising from the infringement of its IPR.

Licence Agreement: all agreements that may have to be entered into by Pentiq and/or the Client in respect of Third Party Services used. 

Local System Components: equipment supplied by the Client such as routers, switches, access points, firewalls, PCs, thin client devices, smart phones, wireless controllers, workstations, printers, mobile devices, docking stations, headsets, peripherals, servers, network attached storage (NAS) and storage area network (SAN).

Normal Business Hours: 9.00 am to 5.30 pm local UK time on Business Days unless otherwise set out in an Order Form.

Order Form: the order form which includes the Proposal and which set out the Services, Scope, and the Service Level Arrangements (if applicable) under separate cover and which incorporates these Conditions.

Out of Scope: those out of scope services specified as such in the Order Form together with any other services which are not detailed in the Order Form.

Party/ies: a party to this Agreement or parties, being Pentiq and the Client. 

Penetration Tests: means the Services to test the Client’s System as described in the Order Form.

Pentiq: Pentiq Limited, a company incorporated and registered in England and Wales with company number 10106200 whose registered office is Admirals Offices Main Gate Road, The Historic Dockyard, Chatham, England, ME4 4TZ.

Pentiq's System: the system to be used by Pentiq in performing the Services, including, where applicable, the Hardware, Platform, any Third Party Services, and communications links between the Hardware and the Client's System.

Platform: a platform comprising a portal, website, secure file store or other such repository which Pentiq may use and may provide authenticated access to the Client in delivering the Services.

Proposal: means the proposal for the Services provided by Pentiq to the Client detailing the scope of works for the Services and which is signed by the Parties.

Purpose: the purposes for which the Client Personal Data is processed, as set out in the applicable Order Form. 

Rates: Pentiq’s standard hourly or daily fee rates as set out in the applicable Order Form.

Red Team Penetration Test: means a focused, goal-oriented security testing method that is designed to achieve specific objectives.  This may include the onsite presence of Pentiq at the Client Site to test the Client’s System as set out in the Proposal.

Relief Events: the following events:

5. any act, omission which prevents or delays Pentiq’s provision of the Services or compliance with this Agreement, including any failure by the Client to comply with its obligations under this Agreement (or failure to return the Authorisation to Test Form, signed as required by Pentiq, within the required timescales); 
6. any error or malfunction in the Client’s Systems and, or Business Systems or any other software, hardware or systems for which Pentiq is not responsible or any failure by the Client, its agents or contractors (including any existing service provider) to obtain sufficient support and maintenance, as required, for any software, hardware or systems for which Pentiq is not responsible; 
7. any failure by the Client or its agents or contractors (including any existing service provider) to provide any information, co-operation or instructions to Pentiq which is reasonably required by Pentiq for the proper performance of its obligations under this Agreement
8. any telecommunications network defect, delay or failure or failure of the Client's Systems, Business Systems, hardware or other systems; and/or
9. any of the causes or events set out in Clause 3.7.

Retail Prices Index: the Retail Prices Index (all items, excluding mortgages), or replacement index, as published by the Office for National Statistics from time to time, or failing such publication, such other index as the Parties may agree (such agreement not to be unreasonably withheld or delayed), acting reasonably, most closely resembles such index.

Retest: any additional test which is carried out after the completion of the Penetration Test to verify any security risks identified by Pentiq have been successfully remediated by the Client, as specified in the Order Form or otherwise agreed with the Client in writing at the cost specified in the Order Form.

Scheduled Downtime: the total amount of time during which the Client is not able to access the Client’s System, Business Systems and, or the Services, including the Platform due to planned Services. Pentiq may schedule system downtime, with prior agreement of the Client. Scheduled Downtime periods do not count against the service level calculation detailed in such Order Form.

Service Level Arrangements or SLA: service level arrangements where applicable and if any, as set out in the Order Form.

Services: the provision, as applicable and as specified in the Order Form, of Tests, comprising Penetration Tests, Retests, Red Team Penetration Tests, breach and attack, social engineering, phishing and security awareness training, Penetration Testing as a Service and cyber security advisory services as applicable, and any Platform to be provided by Pentiq under an Order Form, or otherwise agreed in writing between the Parties, including any Third Party Services, tools, software, hardware, or professional support or consulting services provided under the terms of the applicable Licence Agreement or Third Party Terms or as otherwise agreed between the Parties in writing.

Services Commencement Date: the commencement date of the Services as set out in the applicable Order Form or as otherwise agreed between the Parties in writing for the commencement of the Services, and as may also be referred to as a Testing Start Date. 

Subscription Services: a right to receive the Services for a defined term subject to these Conditions.

Subsequent Term: twelve (12) months commencing on the last day of the Initial Term or previous Subsequent Term.

Term: the Initial Term and any Subsequent Term, as applicable. 

Test/s: means, as applicable, Penetration Test or Red Team Penetration Test. 

Testing Start Date: the commencement date of Test Services as set out in the applicable Order Form, or as otherwise agreed between the Parties in writing for the commencement of the Services, and as may also be referred to as Services Commencement Date.

Third Party: any third party that supplies Third Party Services to Pentiq and/or the Client (as the case may be) during the provision of the Services. 

Third Party Services: any services, goods, code or software programs written or provided by a Third Party which are used during the provision of the Services.

Third Party Terms: any terms and conditions relating to Third Party Services.

Unauthorised Access: the act of gaining access to computer material, systems, or data without proper authorisation as prohibited by Applicable Laws, including unauthorised acts with intent to impair, or with recklessness as to impairing, the operation of a computer.

Unauthorised Modification: the act of altering, deleting, or corrupting computer material, systems, or data without proper authorisation, as prohibited by Applicable Laws.

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

Unscheduled Downtime: any time when any or all of the Client’s System, Business Systems and, or any Services (including the Platform) provided by Pentiq to the Client shall be unavailable to the Client due to unexpected system failures other than Scheduled Downtime or the downtime is attributable to events not under the control of Pentiq.

Subscriptions: subscriptions purchased by the Client, where applicable, and set out in an Order Form which entitle Authorised Access for the use the Subscription Services and/or Third Party Services (as the case may be) in accordance with this Agreement.

13. Clause, Schedule and paragraph headings shall not affect the interpretation of these Conditions.

14. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

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

16. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

17. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

18. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

19. A reference to writing or written includes e-mail.

20. Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, shall be construed as illustrative and shall not limit the generality of the related general words.

21. References to Clauses, Schedules and paragraphs are to the Clauses, Schedules and paragraphs of these Conditions

22. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

23. Where the Client is not the End User, unless otherwise specified, reference to the Client and the Client’s obligations under this Agreement shall include and apply to the End User to the extent applicable and to the extent the context permits and the Client shall undertake to procure that the End User complies with such obligations.

24. In the event of any conflict or inconsistency between the Clauses of this Agreement, the Schedules, the Order Form, Licence Agreement/Third Party Terms, the Data Processing Agreement and any other documents forming part of the Agreement, the following order of precedence shall apply in decreasing order to the extent of such conflict or inconsistency:

6. in respect of the Processing of Client Personal Data, the Data Processing Agreement shall prevail over the rest of this Agreement;
7. in respect of any Restricted Transfer, any applicable international data transfer mechanism entered into pursuant to the Data Processing Agreement shall prevail to the extent required by Applicable Data Protection Laws;
8. the Order Form;
9. the Licence Agreements / Third Party Terms, to the extent applicable to the Services;
10. the Schedules; 
11. the Clauses in these Conditions.

2. PROVISION OF SERVICES

7. These Conditions together with the Order Form sets out the Agreement, comprising the terms and conditions under which Pentiq shall provide the Services to the Client. 

8. As long as there is no material adverse effect on the quality or performance of the Services and do not result in any change of the applicable Fees or the Rates, Pentiq can make reasonable changes (without prior notice unless prohibited by applicable law) to the Agreement or Order Form which as required to conform with any applicable safety, regulatory or other statutory requirement, or any Third Party request that Pentiq is required to flow down to the Client to the extent that these are essential to the ongoing provision of the Services.

9. These Conditions shall (i) be in substitution for any prior oral or other prior arrangements between Pentiq and the Client in connection with the purchase of the relevant Services; and (ii) prevail over any of the Client’s inconsistent terms or conditions contained in, or referenced in, any order confirmation or other acknowledgement, quotation, purchase order(s), delivery note, invoice or similar document or implied by law, trade custom or practice.

10. Any samples, drawings, descriptive matter or advertising issued by Pentiq, and any descriptions or illustrations contained in Pentiq's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.

11. Any Order Form, quote and, or proposal given by Pentiq is for budgetary purposes until financial and technical validation and shall not constitute an offer and is only valid for a period of thirty (30) days and shall only become binding upon the signing of the applicable Order Form, quote and, or Proposal by both Parties.

12. Pentiq shall not be under any obligation to perform and the Client shall not be under any obligation to accept any Services unless and until an Order Form has been executed.

13. Pursuant to Clause 1.12, where this Agreement is entered into by Pentiq with a Client who is not the End User, the Parties acknowledge and agree that:

1. references to: 

1. “Client”, “Client Data”, ”Client Personal Data”, “Client Site”, “Client System” and “Client’s Intellectual Property Rights”
2. shall refer to and be construed as referring to the End User as applicable and where the context so permits, including to such items of the End User;

4. the Authorisation to Test Form, and such other documentation as Pentiq requires, must be signed by the indicated party and returned to Pentiq before the commencement of the Services and Pentiq shall not be liable for any delay or failure to provide the Services where the Authorisation to Test Form has not been signed and returned as required by Pentiq within the required timescales; 
5. the Client agrees to procure that the applicable party (including the End User) completes, signs and returns the Authorisation to Test Form and such other documents as may be required by Pentiq and acknowledges that Pentiq requires these to be completed as necessary before it can commence any Services; and
6. Pentiq may communicate directly with the Client (including any End User) for day-to-day purposes only and will provide copies of all correspondence to the Client project manager and communicate any other relevant information arising from communications with the End User.

3. RESPONSIBILITIES OF PENTIQ

1. Subject to receipt of an Authorisation to Test Form signed by the Client (or where applicable End User), Pentiq shall:

9. provide the Services in accordance with the terms of this Agreement, including the Order Form and any changes must be agreed between the Parties in writing prior to the start of the Services, due to the fact that any modification might change the time allotted/resources needed and will be noted by a revised Order Form signed by both Parties;
10. use its commercially reasonable endeavours to complete any Deliverables and/or meet any SLAs within any timescales set out under any Order Form but any dates and timescales specified for performance of Pentiq’s obligation are estimates only and time shall not be of the essence;
11. commit sufficient resources to the provision of the Services to enable their delivery in accordance with the Agreement and Order Form;
12. provide the Services with due care, skill and ability in accordance with Good Industry Practice;
13. take such reasonable steps as may be necessary to fulfil its obligations under this Agreement and any Order Form;
14. utilise suitably skilled, qualified, experienced, supervised and vetted employees, agents, representatives and authorised sub-contractors who will exercise all reasonable skill and care;
15. notify the Client promptly if Pentiq is unable to comply with any of the terms of this Agreement or, any Order Form; 
16. observe and ensure that its personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Client Sites and which have been communicated to it a week prior to the Services commencing, where Pentiq is required to be on such Client Sites for the provision of the Services; and
17. where specified in the Order Form or otherwise agreed in writing between the Parties, Pentiq may provide a Platform for use by Authorised Access for the delivery of the Services subject to Clause 6 and the Client’s obligations under Clause 4.4 and the following provisions: 

1. the Client shall be obliged to disclose information in accordance with any Applicable Laws;
2. any materials, logos, users, and content on the Platform may be subject to limitations on usage, reproduction, or dissemination including any terms and conditions relation to such and which shall apply to the Client;
3. should the Platform contain a link to a third-party website or resource, Pentiq is not responsible for such third party and the Client is solely responsible in respect of following any such links;
4. the terms and conditions of any Platform shall apply to the use of the Platform including to Authorised Access; and
5. the provision of the Platform at its sole discretion and to the extent permitted by law, all warranties are excluded (including that the Platform will meet the needs of the Client or be available on an uninterrupted, or error free basis).

7. Pentiq shall co-operate with the Client in all matters relating to the Services and shall appoint an Authorised Representative (“Pentiq Representative”), as the contact throughout the Services.

8. The Client confirms that Pentiq may employ sub-contractors without seeking the prior consent of the Client, provided that where such subcontractors Process Client Personal Data on behalf of Pentiq, their appointment shall be subject to the Data Processing Agreement.

9. Pentiq may in the provision of the Services and, or the Deliverables make recommendations in relation to the Client’s System including (but not limited to) the Client’s security configuration, hardware, software and/or general IT system configuration. In the event that the Client does not wish to follow Pentiq’s recommendations and, in Pentiq’s reasonable opinion, such refusal will have an adverse effect on Pentiq’s ability to provide the Services in accordance with this Agreement and the applicable Order Form, and agreement is not reached in respect of (i) any necessary action; (ii) the Services; and/or (iii) applicable Fees, then Pentiq reserves the right to cease provision of the affected Services in whole or in part and/or to terminate the Agreement and/or the applicable Order Form.

10. The Client must take reasonable measures to ensure it does not jeopardise services supplied to third parties on the same shared access infrastructure as notified to the Client by Pentiq in writing. This includes informing Pentiq promptly in the case of a denial-of-service attack or distributed denial-of-service attack. In the event of any such incident, Pentiq will work with the Client to alleviate the situation as quickly as possible. The Parties shall discuss and agree appropriate action (including suspending the Services).  

11. The Client shall not provide the Services to third parties unless otherwise indicated in the Order Form or as otherwise agreed by the Pentiq in writing.

12. The Client acknowledges that certain conditions outside of Pentiq’s control may adversely impact the ability of Pentiq to perform functions of the Services. Examples of such conditions are listed below:

4. failure of Client Hardware, Client’s System, software or operating system;
5. partial or full failure of Third Party Services;
6. network connectivity issues between Local System Components and Pentiq’s System or Platform;
7. network connectivity issues between Local System Components and its third party’s servers. 

8. Pentiq reserves the right at any time to:

2. modify Pentiq's System, its network, system configurations or routing configuration; and, or
3. modify or replace any Hardware in its network or in equipment used to deliver any Services over its network.

13. If requested by Pentiq, the Client shall consider allowing Pentiq to install monitoring and, or scanning software on the Hardware and/or in the Client’s System to enable Pentiq to conduct remote monitoring, scanning and diagnostics and shall ensure that such software remains installed throughout the applicable Term.

14. The Services acquired by the Client under the Agreement are solely for the Client’s own internal use and not for resale or sub-licensing, unless otherwise agreed in writing.

15. Pentiq may suspend, revoke or limit use of the Services, wholly or partly (i) in case of late payments, (ii) if Pentiq in its absolute discretion finds that a risk to the overall integrity of the Services has occurred, or (iii) other reasonable grounds exist. If the cause of the suspension is reasonably capable of being remedied, Pentiq will provide the Client notice of what actions the Client must take to reinstate the Services and/or the Client’s System. If the Client fails to take such actions within a reasonable time, Pentiq may terminate the applicable Services.

16. Pentiq is entitled to amend the terms of the Agreement in order to reflect any changes and updates received from its Third Parties to the extent that these are essential for the ongoing provision of the Services.

17. Pentiq does not warrant that the Client's use of the Services (nor, for the avoidance of doubt, the Client’s System and, or Business Systems during the Services) will be:

2. free from faults, interruptions or errors;
3. available one hundred percent (100%) of the time.

14. In relation to the Services, Pentiq shall:

6. staff Pentiq support desk with a team of skilled individuals (whether subcontracted or not);
7. maintain a team skilled in the Platform and with knowledge of the systems developed to deliver the Services;
8. maintain a comprehensive IT service management solution, with integrated knowledge base and how-to guides to reduce the time to issue resolution;
9. where agreed, undertake a regular account review, to discuss the Client’s service needs and ensure that the Agreement is in alignment with its needs; 
10. use commercially reasonable endeavours to follow the instructions of the Client and will remain courteous during any communications with Client personnel; and
11. provide the Client with reasonable co-operation in relation to the Agreement.

15. Pentiq shall be under no obligation to provide the Services to the Client in the following circumstances (unless specified under the Order Form):

5. the Authorisation to Test Form has not been returned as signed as required by Pentiq;
6. unauthorised use of the Services by the Client or use otherwise than in accordance with the Agreement;
7. providing the Services outside Normal Business Hours unless otherwise agreed between the Parties in writing; 
8. providing any other services not covered herein; and
9. training.

17. Pentiq does not and cannot control the flow of data to or from its network and other portions of the internet.  Such flow depends in large part on the performance of internet services provided or controlled by third parties.  At times, actions or omissions of such third parties can impair or disrupt connections to the internet (or portions thereof).  Whilst Pentiq will use reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Pentiq cannot guarantee that such events will not occur. Accordingly, Pentiq disclaims any and all liability resulting from or related to such events.

18. In the event that Pentiq is in breach of its obligations under the Agreement, then the Client shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) days’ notice to remedy such breach if capable of remedy. If the Pentiq fails to remedy such breach the Client shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. The Client shall have no liability or responsibility should the Services fail to comply with the Order Forms and/or Service Level Arrangements as a direct result of Pentiq (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

4. RESPONSIBILITIES OF CLIENT

4. To the extent that Pentiq requires access to the Client Site to perform the Services, the Client shall provide such access: (i) during Normal Business Hours and to provide a suitable work environment to enable Pentiq to perform such Services subject to Pentiq complying with such internal policies and procedures of the Client (including those relating to security and health and safety) as may be notified to Pentiq in writing pursuant to Clause 4.4(g), and subject to Pentiq’s obligations under Clause 3.1(h); and (ii) as may be required for Red Team Penetration Tests.

5. The Client shall co-operate with Pentiq in all matters relating to the Services and shall appoint a minimum of two (2) Authorised Representatives (“Client Representatives”), who shall have authority to commit the Client on all matters relating to the relevant Service.

6. The Client agrees and acknowledges the terms of the applicable Third Party Terms and, or Licence Agreements shall form part of this Agreement.  For the avoidance of doubt, in the event the applicable Third Party Terms and, or Licence Agreements is not applicable to the Services being received or delivered by Pentiq to the Client under this Agreement, such agreements shall not apply.

7. The Client shall:

11. adhere to any Acceptable Use Policy;
12. ensure the terms of the Order Form  are accurate and complete;
13. return the Authorisation to Test Form signed by the Client, or, where the Client is not the End User, procure that the End User shall complete, sign and return the Authorisation to Test Form to Pentiq, including any other documents required by Pentiq in the timescales specified by Pentiq (or if none, in good time prior to the Services Commencement Date) and time shall be of the essence in respect of the delivery of the Authorisation to Test Form to Pentiq. The Client acknowledges that any failure to comply with this clause 4.4(c) may result in a delay to the Services, suspension of the Services or a reduced delivery time for the Services and Pentiq shall not be liable for any loss, liability, costs, claims or expenses, howsoever arising, incurred by the Client in connection with a failure to return the Authorisation to Test Form signed by the relevant party (being the Client and, or End User as applicable) pursuant to these Conditions, including this Clause 4.4(c);
14. make the Client’s System, premises, accommodation and other facilities, required to receive the Services, accessible to Pentiq’s staff, enable logons or passwords required for such support staff and provide appropriate hardware interface, software and access authorisation to enable remote diagnosis, should such capability be required;
15. ensure it has suitable licences in place for any third party software required (which is not issued or procured by Pentiq) to allow Pentiq and its subcontractors full use in relation to the Services provided;
16. not use the Services to receive, store or transmit material or data that is obscene, threatening, offensive, discriminatory, defamatory or in breach of confidence, infringes Intellectual Property Rights or other rights, gives rise to any cause of action against Pentiq in any jurisdiction or is otherwise unlawful, and Pentiq reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this sub-clause;
17. inform Pentiq in writing of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Client’s premises;
18. provide all information and make available all resources as reasonably requested by Pentiq in the execution of its obligations under this Agreement;
19. use all reasonable efforts to follow the reasonable instructions of Pentiq support personnel with respect to the resolution of defects;
20. gather all relevant information prior to requesting assistance in respect of any defects including detailed defect description, and procedures required to replicate a problem if possible. Any additional information which may help in the diagnosis of a defect should be included such as network configuration details; and
21. agree that if, in the course of performing the Services, it is reasonably necessary for Pentiq’s performance of its obligations under an Order Form for Pentiq to access or use any equipment, software or data of the Client (or which is in the possession of the Client) then it shall where it is able to do so grant to Pentiq and any of its subcontractors a non‑exclusive, royalty free, terminable licence to use the same solely for the purpose of delivering the Services only for as long as is strictly necessary to deliver such Services.

5. The Client agrees to adhere to the dates scheduled for provision of Services by Pentiq as stated in the applicable Order Form or otherwise agreed between the Parties in writing. If the Client wishes to reschedule or cancel the dates for the provision of the Services (including, fails to provide the Authorisation to Test Form, signed as required by Pentiq):

5. Pentiq will use reasonable endeavours to re-assign allocated resources to other clients;
6. if such re-assignment is not possible and the Client has not provided more than five (5) Business Days’ advance written notice, then unless otherwise stated in the applicable Order Form, the Client shall be liable to pay the following cancellation charges (“Cancellation Charges”) relating to this action, in addition to any specific costs relating to cancelling pre-booked travel arrangements and to unpaid Fees (if any) for any Services work that has been performed if dates are changed or cancelled less than five (5) Business Days before the scheduled start date, Cancellation Charges equivalent to one hundred percent (100%) of the Fees for the Services to be provided at that time will be payable; 
7. where the Client has taken Services delivered on an ongoing basis, as specified in the Order Form or as agreed in writing between the Parties. If the Client fails to utilise the Services and such failure was not caused by Pentiq, the Client understands and agrees that Pentiq shall be entitled to raise an invoice in the usual way; or
8. where the Client decides to cancel the Services prior to commencement of the Services, Pentiq may at its sole discretion allow the Client to cancel the Services and may at Pentiq’s discretion charge the Client an administration fee. Such administration fee shall include but not limited to, all unavoidable third party costs and Pentiq’s costs for cancellation, including the Cancellation Charges; or
9. where a Retest is not scheduled by the Client within ninety (90) days after completion of the Penetration Test then Pentiq reserves the right to invoice the Client in full and the Client shall waive its right to a Retest.

6. The Client shall:

5. use the Services only for lawful purposes and in accordance with this Agreement;
6. keep secure from third parties any passwords issued to the Client by Pentiq (including for the Platform where applicable);
7. keep and maintain all materials, equipment, documents and other property of or provided by Pentiq which are for the time being at the Client’s Site in safe custody at the Client’s own risk and maintain them in good condition until returned to Pentiq and not dispose of or use them otherwise than in accordance with Pentiq’s written instructions or authorisation; 
8. comply with all applicable laws and regulations with respect to its activities under this Agreement; and 
9. carry out all other Client responsibilities set out in this Agreement and the Order Form in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the Parties, Pentiq may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.

7. The Client shall (unless otherwise specified in the Order Form or as otherwise set out in the Agreement):

2. permit Pentiq to install the current version of software required to provide the Services from time to time when upgrades or fixes occur and to provide a reasonable level of assistance in implementation and testing; 
3. provide Pentiq at least seven (7) Business Days’ notice in advance of any intention or move to change when applicable Client’s System or data-feeds that will directly impact the Services. If such notice has not been received on time, Pentiq will have to make additional effort to return the Client’s Systems to an acceptable state for the Services, and will charge accordingly at its then standard rates. 

11. Pentiq shall not be liable for any delays or claims of whatsoever nature, which result, directly or indirectly, from the failure by the Client, or any other party (including the End User) to comply with the reasonable requests of Pentiq or the breach by the Client of any provision of this Agreement (or its failure to procure the End User to comply), including any delay arising to the Services and, or Services Commencement Date as a result of any failure to return the Authorisation to Test Form signed by the Client or End User as applicable.

12. In the event that the Client is in breach of its obligations under the Agreement (excluding payment obligations) then Pentiq shall provide written notice of such breach, specifying in detail the nature of the breach and providing thirty (30) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach Pentiq shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. Pentiq shall have no liability or responsibility should the Services fail to comply with the Order Forms and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

13. In the event that the Client is in breach of its payment obligations under the Agreement then Pentiq shall provide written notice of such breach, specifying in detail the nature of the breach and providing seven (7) days’ notice to remedy such breach if capable of remedy. If the Client fails to remedy such breach Pentiq shall be entitled to terminate or suspend the Services without prejudice to any pre-existing rights and obligations of either Party. Pentiq shall have no liability or responsibility should the Services fail to comply with the Order Forms and/or Service Level Arrangements as a direct result of the Client (including without limitation any of its employees, subcontractors or any of its staff) being in breach of the Agreement.

14. For the avoidance of doubt, if Pentiq suspends the Services in accordance with Clause 4.10, the Client shall remain liable to pay all Fees as though the Services had continued as agreed for the period of suspension, including Fees for the remainder of the applicable Term (whether Initial Term or Subsequent Term as applicable) and for any outstanding Services. 

5. PROJECT ORGANISATION AND CHANGE REQUESTS

4. If specified in the Order Form or otherwise agreed between the Parties in writing, the Client Representatives and Pentiq Representative may have regular meetings to monitor and review the performance of the Services if applicable.

5. Before each meeting, the Client Representatives shall notify Pentiq Representative, and vice versa, of any problems relating to the provision of the Services for discussion at the meeting. At each such meeting, the Parties shall agree a plan to address such problems. In the event of any problem being unresolved or a failure to agree on the plan, the matter shall be resolved in accordance with the Dispute Resolution Procedure. Progress in implementing the plan shall be included in the agenda for the next meeting.

6. Either Party may request changes to any Services (in each case, a “Change Request”). Unless otherwise agreed between the Parties in writing, any Change Request shall be made in writing and sent to the Client Representatives or Pentiq Representative (as appropriate) and shall set out the change in sufficient detail so as to enable the other Party to make a proper assessment of such change. 

7. Pentiq reserves the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Pentiq shall notify the Client in any such event no later than thirty (30) days before the amendment takes effect. If the Client does not agree, where consent is not to be unreasonably withheld, with the amendment, then it may terminate the affected Order Form before such amendment takes effect. Unless otherwise agreed in writing, Pentiq shall be entitled to charge the Client at Pentiq’s then current Rates for investigating, reporting on and, if appropriate, implementing any Change Request requested by the Client.

6. PLATFORM AND SUBSCRIPTIONS

2. In respect of Authorised Access, Pentiq or relevant Third Party, as applicable, grants to the Client a non-exclusive, non-transferable right to use the Third Party Services and/or Platform (as applicable) during the Term of the applicable Order Form solely for the Client's internal business operations and pursuant to the terms of the applicable Licence Agreement and/or Third Party Terms and limited to the Authorised Access.

3. In relation to Authorised Access, the Client undertakes that:

6. it will not allow or suffer any Subscription to be used by more than the agreed Authorised Access unless it has been reassigned in its entirety to another Authorised Access, in which case the prior Authorised Access shall no longer have any right to access or use the Third Party Services and/or Subscription Services;
7. it shall keep any passwords or multi-factor authentication used confidential;
8. it shall maintain a written, up to date list of current Authorised Access and provide such list to Pentiq within five (5) Business Days of Pentiq’s written request from time to time;
9. it shall permit Pentiq to remotely audit the Client’s use of the Third Party Services and Platform for each Authorised Access. Such audit may be conducted no more than once per quarter, at Pentiq's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;
10. if any of the audits referred to in Clause 6.2(d) reveal that any password has been provided for use other than by Authorised Access, then without prejudice to Pentiq's other rights, the Client shall promptly disable such passwords and Pentiq shall not issue any new passwords for such access; and 
11. if any of the audits referred to in Clause 6.2(d) reveal that the Client has underpaid Fees to Pentiq and/or for Subscription Services, without prejudice to Pentiq's other rights, the Client shall pay to Pentiq an amount equal to such underpayment within ten (10) Business Days of the date of the relevant audit or upon request by Pentiq and promptly disable access to such individuals.

3. The Client may, from time to time during any Term:

2. subject to the Licence Agreement, other Third Party Terms and the Order Form, request that the Subscriptions are increased; or
3. request Additional Usage at any point in excess of the Subscriptions, by giving Pentiq written notice subject to the following:

1. Pentiq shall evaluate the Client's request for Additional Usage and grant or refuse the request (in its sole discretion);
2. if Pentiq approves the Client’s request to purchase Additional Usage, the Client shall, within thirty (30) days of the date of Pentiq’s invoice, pay to Pentiq the relevant Fees for such Additional Usage at the relevant price at the time of the request. If such Additional Usage is purchased by the Client part way through the Term, such Fees shall be pro-rated for the remainder of the Term.

4. No Termination for Convenience. The Client shall not be entitled to terminate an Agreement or any Order Form for convenience during the Term. Early termination is only permitted in accordance with Clause 16 (Termination) of these Conditions, and subject to all Fees being paid in full for the duration of the then-current Term, whether or not the Services are used.

7. PRICE AND PAYMENT

7. The Client shall pay the Fees for the Services (including any Third Party Services and, or the Platform) as set out in the relevant Order Form and billing for the Services shall commence from the date the Agreement is signed by the last of the Parties. 

8. Where the Fees are based on the quantity or number of Authorised Access, such Fees may be variable upon the terms set out in the Order Form.

9. If no Fee is quoted and/or Pentiq provides any services that are Out of Scope, the Fee shall be calculated in accordance with Pentiq’s Rates set out in the Order Form as amended from time to time and be payable in accordance with this Agreement.

10. For the avoidance of doubt, in the event the Client delays any Testing Start Date or other agreed go-live date (which falls outside of the Cancellation Charges), Pentiq may charge the Client for such delays in accordance with its Rates and Cancellation Charges pursuant to Clause 4.5.

11. Clause 7.7 shall apply if the Services are to be provided on a time-and-materials basis.  The remainder of this Clause 7 shall apply to all Fees, whether payable on a fixed price, annual or time and materials basis.

12. Where a Fee has been quoted, this is a best estimate based on the information given to Pentiq by the Client and/or which is available at that time and may be based on a number of assumptions set out in the Order Form (“Assumptions”). If it materialises that in Pentiq’s reasonable opinion, the information provided and/or Assumptions made are incorrect, inaccurate or have changed and/or that the proposed scope of Services is not feasible, Pentiq shall be entitled to charge (at Pentiq’s current Rates) the Client for any Out of Scope Services or other additional Services provided to those detailed in the Order Form together with all related costs and expenses incurred by Pentiq.

13. Where the Services are provided on a time-and-materials basis:

3. Pentiq’s standard hourly or daily rates are calculated on the basis of Normal Business Hours;
4. Pentiq shall be entitled to charge an overtime rate for time worked outside Normal Business Hours as set out in the Order Form; and 
5. Pentiq shall complete the relevant time recording systems to calculate the Fees for each invoice charged on a time and materials basis. 

9. Pentiq shall invoice the Fees in accordance with the payment intervals stated in the Order Form.

10. The Fees exclude (unless otherwise agreed and set out in the Order Form):

3. actual, reasonable travel costs and expenses including airfares, hotels and meals incurred by Pentiq or its subcontractors in performance of the Services, the cost of any materials and the cost of services reasonably and properly provided by third parties and required by the Client for the Services (“Expenses”). Pentiq shall obtain the Client’s prior written approval before incurring any such expense, material or service exceeding a total cost of five hundred pounds (£500) in the aggregate per day and shall be payable by the Client in accordance with Clause 7.10; 
4. VAT or other relevant sales tax, which Pentiq shall add to its invoices at the appropriate rate; and
5. any costs, charges or expenses payable by the Client under the Data Processing Agreement, including any material costs incurred by Pentiq in complying with additional obligations under the Data Processing Agreement and any agreed costs relating to international transfer mechanisms or supplementary measures.

13. The Client shall pay each undisputed invoice, or undisputed amount of any disputed invoice, for the Fees and Expenses in full and cleared funds, without deduction or set-off, within thirty (30) days of the date of such invoice unless otherwise set out in the Order Form or otherwise agreed by Pentiq in writing. Where the Order Form provides that any Fees are payable in advance, such Fees shall be payable in accordance with the payment terms set out in the Order Form. Expenses shall be invoiced separately unless otherwise stated in the Order Form.

14. All payments by the Client hereunder shall be in United Kingdom pounds sterling unless otherwise agreed or set out in the Order Form and shall be paid to Pentiq’s bank account as advised by Pentiq to the Client in writing.

15. Should the Client be required by any law or regulation to make any deduction on account of tax including but not limited to withholding tax or otherwise on any sum payable under the Agreement the Fees payable shall be increased by the amount of such tax to ensure that Pentiq receives a sum equal to the amount to be paid under the applicable Order Form.

16. Without prejudice to any other remedy that Pentiq may have, if payment of the Fees or any part thereof is overdue then unless the Client has notified Pentiq in writing that such payment is in dispute within ten (10) days of the receipt of the corresponding invoice Pentiq may, without prejudice to any other rights or remedies:

2. suspend the Services in whole or in part, subject to the notice process in Clause 4.10, until payment has been made in full; and 
3. charge the Client interest on the overdue amount at the rate of four percent (4%) per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount.

18. The Client shall not be able to dispute any amounts which have been paid by the Client after a period of three (3) months has elapsed from the date of invoice. 

19. Pentiq shall not be obliged to provide any of the Services while any duly issued invoice(s) remain unpaid under any Order Form, but should Pentiq choose to continue to do so, this shall not in any way be construed as a waiver of Pentiq’s rights or remedies.

20. Subject to Clause 7.18 below, the Fees relating to the Services shall increase on an annual basis with effect from each anniversary of the date of signature of the applicable Order Form in line with the percentage increase in the Retail Prices Index in the preceding twelve (12) month period.

21. For the avoidance of doubt, Pentiq may increase any fees related to Third Party Services in line with any increases imposed upon Pentiq by such third parties upon reasonable notice and in line with the terms of the Third Party Terms and, or any Licence Agreements.

22. Notwithstanding Clause 7.16 and without prejudice to Clause 7.17, Pentiq reserves the right, on giving the Client one hundred and twenty (120) days’ notice, to increase the Fees on an annual basis with effect from each anniversary of the Commencement Date. If the Client does not agree with this increase, then it may terminate the affected Order Form at the end of the then current term upon ninety (90) days written notice and before such price increase takes effect. If Pentiq does not receive written notice within ninety (90) days, the Client is deemed to have agreed to the amendment to the Fees.

8. WARRANTIES AND SERVICE LEVELS

1. The Client warrants that:

8. it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of the Client;
9. it has not been induced to enter into this Agreement by any prior representations, nor has it relied on any oral representation made by Pentiq or upon any descriptions, illustrations or specifications contained in any catalogues and publicity material produced by Pentiq;
10. it has the authority to grant any rights to be granted to Pentiq under this Agreement;
11. it owns or has obtained valid licences, consents, permissions and rights to use, and where necessary to licence to Pentiq and any of its subcontractors, any materials reasonably necessary for the fulfilment of all its obligations under this Agreement; 
12. it will comply with all Applicable Laws in performing its obligations under this Agreement; 
13. it is the owner of all systems, applications, networks, premises and any other assets that are set out in the Order Form or Proposal, as applicable; and
14. has the full capacity and authority to instruct Pentiq to perform the Services on the Business Systems and/or applications as set out in the Order Form or Proposal as applicable and will not hold Pentiq liable for any violation of the Computer Misuse Act 1990, nor any other applicable laws, rules or regulations, including local; and
15. Pentiq’s use in the provision of the Services or otherwise in connection with this Agreement of any Third Party materials, including any Hardware supplied by the Client to Pentiq for use in the provision of the Services or otherwise in connection with this Agreement, shall not cause Pentiq to infringe the rights, including any Intellectual Property Rights, of any third party.

2. Pentiq warrants that:

4. it has the full capacity and authority to enter into and perform this Agreement and that this Agreement is executed by a duly authorised representative of Pentiq; 
5. it owns or has obtained valid licences, consents, permissions and rights to enable Pentiq to comply with this Agreement and to use any of the Intellectual Property Rights necessary for the fulfilment of all its obligations under this Agreement;
6. it will comply with all Applicable Laws in performing its obligations under this Agreement; and
7. the Client’s use of any Pentiq materials shall not cause the Client to infringe the rights, including any Intellectual Property Rights, of any third party.

14. Except for any warranties and service levels expressly set forth in this Agreement, the Services are provided on an “as is” basis, and Client’s use of the Services is at its own risk. The Client assumes responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. Pentiq does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice.

15. In the event that a defect, fault or impairment in the provision of the Service(s) causes a service interruption in the Services and Pentiq becomes aware of this either through the Client giving notification to Pentiq of such default, fault or impairment, or as a result of Pentiq’s monitoring, then Pentiq shall use its commercially reasonable endeavours to resolve that defect, fault or impairment in the Services to the extent it reasonably can.

16. If Pentiq determines in its reasonable opinion that such a defect, fault or impairment results directly or indirectly from: (i) the negligence, act, omission, or default of the Client or Authorised Access, (ii) the Client’s breach of this Agreement, (iii) the operation, failure or malfunction of any network, equipment, hardware or software owned or controlled by the Client, or (iv) any third party action in response to an act or omission of the Client or any person given access to the Services by the Client (including third party hosted software vendors) then Pentiq may recover from the Client all reasonable costs to be incurred by it or on its’ behalf in connection with the remedy of such defect, fault or impairment to the Services. Therefore, for the avoidance of doubt, Pentiq can make no commitment to fix any fault and time is not of the essence.

17. Unless otherwise agreed or set out in the Order Form (as forming part of the Service), if the Client accesses the Services through the public internet or through a private circuit provisioned by a bandwidth provider of the Client’s choice, the Client assumes responsibility for managing the relationship with this chosen provider, including service level commitments for issues found to be in the chosen provider’s network.

18. Pentiq may notify any Scheduled Downtime via its website from time to time, but the Client acknowledges that the nature of the Services is such that it can result in Unscheduled Downtime. Pentiq is not responsible for Unscheduled Downtime that is due to anything outside Pentiq’s control, including any unavailability or suspension of or other impact to the Client’s System, Business Systems, or any outage or downtime arising as a result of or in connection with the Services. Pentiq and its subcontractors may suspend some or all of the Services in order to carry out scheduled or emergency maintenance or repairs.

19. The Client warrants it will comply with and use the Services in accordance with the terms of the Agreement and all Applicable Laws, and shall not do any act that shall infringe the rights of any third party including the publishing or transmission of any materials contrary to Applicable Laws.

20. Except to the extent caused by Pentiq’s breach of Clause 9 or the Data Processing Agreement, Pentiq is not responsible or liable for the deletion of, corruption of, unauthorised access to or failure to store any Client Data and other communications maintained or transmitted through the use of or provision of the Services.

21. The Client acknowledges and accepts that where the Services include Third Party Services, any representations or warranties regarding the use of the Services are set out in the applicable Licence Agreement or Third Party Terms (as applicable). Pentiq has no responsibility for the suitability, availability, functionality or otherwise regarding the Services.

22. Any Service Level Arrangements are specific to directly provided Services of Pentiq and do not relate to Third Party Services (of which such Third Party Services will be governed by their own relevant service levels). 

23. Save only as may be provided for otherwise under any Order Form, Pentiq makes no warranty or representation of any data backup with the Services. The Client is responsible for all database and/or system back-ups.

24. Pentiq shall not in any circumstances be liable under its obligations in this Clause 8 if it can demonstrate that any failure of the Services was caused or contributed to by any Relief Event.

25. Notwithstanding the foregoing, Pentiq does not warrant that the Client’s use of the Services will be uninterrupted or error-free.

9. DATA PROTECTION

5. For the purposes of this Clause 9, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the Applicable Data Protection Laws.

6. To the extent Pentiq Processes Client Personal Data on behalf of the Client in connection with the Services, the Parties shall comply with the Data Processing Agreement.

7. The Data Processing Agreement forms part of this Agreement. In the event of any conflict or inconsistency between this Agreement and the Data Processing Agreement in relation to the Processing of Client Personal Data, the Data Processing Agreement shall prevail.

8. Where the Client is not the End User or is not the relevant controller of the Client Personal Data, the Client warrants that it has all necessary authority, permissions and instructions from the End User and/or relevant controller to permit Pentiq to Process the Client Personal Data in accordance with this Agreement and the Data Processing Agreement. The Client shall procure that the End User and/or relevant controller complies with all obligations necessary to enable Pentiq to provide the Services lawfully.

9. Nothing in this Agreement shall relieve either Party of its obligations under Applicable Data Protection Laws.

10. INTELLECTUAL PROPERTY RIGHTS

7. The Client acknowledges and agrees that Pentiq and/or its licensors own all Intellectual Property Rights in its (i) Background Materials; (ii) the Services and Deliverables; and (iii) ideas, concepts, techniques and know-how discovered, created or developed by Pentiq during the performance of the Services that are of general application and that are not based on or derived from the Client’s business or Confidential Information (together the “Pentiq’s Intellectual Property”). Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of Pentiq Intellectual Property or any related documentation. Pentiq grants to the Client a non-exclusive, irrevocable, worldwide royalty free and non-transferable licence to use the Deliverables only insofar as is necessary for the receipt of the Services.

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

9. The Client may not, at any time, including after termination of this Agreement, share any of Pentiq’s Intellectual Property, other than the Deliverables with any third party without Pentiq’s prior written consent. Pentiq may treat the Client's breach of this Clause 10 as a breach of the Agreement.

10. The Client grants to Pentiq for the Term the right to access, copy and use any Client Data and any of the Client’s Intellectual Property Rights as may be required by Pentiq for the purpose of providing the Services. Pentiq will not access, copy or use any Client Data and any of the Client’s Intellectual Property Rights for any other purpose. 

11. The Client shall pay and indemnify Pentiq, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by Pentiq, arising by reason of claims that (i) Pentiq’s possession of or use of the Client’s Intellectual Property Rights in connection with the provision of the Services infringes the Intellectual Property Rights of a third party; (ii) the Client or any of its customers, modify, alter, replace combine with any other data, code, documents or other software, which alters Pentiq’s Intellectual Property, including the Deliverables, and such alterations infringe the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.

12. Pentiq shall pay and indemnify the Client, from and against all actions, claims, liabilities, demands, proceedings, costs suffered or incurred by the Client, arising from the Client’s possession of or use of the Deliverables in connection with the provision of the Services infringes the Intellectual Property Rights of a third party. This indemnity applies whether or not legal proceedings are instituted and, if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination.

13. If either Party (“Indemnifying Party”) is required to indemnify the other Party (“Indemnified Party”) under this Clause 10, the Indemnified Party shall:

4. notify the Indemnifying Party in writing of any IPR Claim against it in respect of which it wishes to rely on the indemnity at Clause 10.5 or Clause 10.6 (as applicable);
5. allow the Indemnifying Party, at its own cost, to conduct all negotiations and proceedings and to settle the IPR 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. provide the Indemnifying Party with such reasonable assistance regarding the IPR Claim as is required by the Indemnifying Party, subject to reimbursement by the Indemnifying Party of the Indemnified Party's costs so incurred; and
7. not, without prior consultation with the Indemnifying Party, make any admission relating to the IPR Claim or attempt to settle it, provided that the Indemnifying Party considers and defends any IPR Claim diligently, using competent counsel and in such a way as not to bring the reputation of the Indemnified Party into disrepute.

8. If an IPR Claim is brought or in the reasonable opinion of Pentiq is likely to be made or brought, Pentiq may at its own expense ensure that the Client is still able to use the Deliverables by either:

2. modifying any and all of the provisions of the Deliverables without reducing the performance and functionality for any or all of the provision of the Deliverables, so as to avoid the infringement or the alleged infringement, provided that the terms herein shall apply to such modified or substituted services in the same way, with only such changes as are required, and such modified or substituted services shall be acceptable to the Client, such acceptance not to be unreasonably withheld; or 
3. procuring a licence or permission to use the Deliverables on terms which are acceptable to the Client, such acceptance not to be unreasonably withheld.

9. Pentiq shall have no obligation or liability under Clauses 10.6 or 10.8 to the extent that the relevant IPR Claim arises from:

2. any use by or on behalf of the Client of the Deliverables in combination with any item not supplied or recommended by Pentiq, where such combination directly gives rise to the claim, demand or action; or 
3. any modification carried out by or on behalf of the Client to any item supplied by Pentiq under this Agreement, where such modification is not authorised by Pentiq in writing and directly gives rise to the claim, demand or action.

11. COMPUTER CRIME / CYBER CRIME

1. The Parties acknowledge that Applicable Laws prohibit:

1. Unauthorised Access to computer material, systems, or data and may include, but is not limited to:

1. attempting to access a computer system or data in that computer system without proper authorisation;
2. using another individual's credentials or identity to gain unauthorised access;
3. employing software, tools, or techniques to bypass security measures and gain unauthorised access; and
4. copying, viewing, or downloading computer material without permission;

2. Unauthorised Access to computer material, systems, or data with the intent to commit or facilitate the commission of further offences and which may include but is not limited to:

1. Unauthorised Access for the purpose of committing fraud, theft, or other criminal activities;
2. Unauthorised Access with the intention of distributing malware, viruses, or any form of malicious software; and
3. Unauthorised Access to gain information or credentials that can be used to commit additional cybercrimes; and

3. Unauthorised Modification of computer material, systems, or data, which may include but is not limited to:

1. altering, deleting, or corrupting data or computer systems without proper authorisation;
2. intentionally spreading false or misleading information through Unauthorised Modifications; and
3. interfering with the normal functioning of computer systems or data through unauthorised changes.

2. Both parties shall comply with Applicable Laws relating to cybersecurity and as set out in Clause 11.1 and shall implement and maintain reasonable and appropriate cybersecurity measures to protect its sensitive information and computer systems as required by Applicable Laws.

12. THIRD PARTY SERVICES

1. Pentiq shall procure any Third Party Services required by the Client for the provision of the Services and as more fully set out in the Order Form.  Except as expressly set out in the relevant Licence Agreement and/or Third Party Terms (as the case may be), the Services will be provided subject to any Licence Agreement, Third Party Terms or other terms and conditions relating thereto. Pentiq expressly excludes:

2. any warranty to the Client that the Third Party Services supplied or licensed under this Agreement will operate substantially in accordance with, and perform, the material functions and features as set out in the marketing, sales or other associated documentations; and 
3. any and all liability in relation to the use of such Third Party Services.

7. Save as agreed under the relevant Order Form, the Client shall remain liable for any and all payments owed to Pentiq throughout this Agreement and until the end of the respective licence terms for such Third Party Services notwithstanding termination of the Agreement or applicable Order Form (the “Licence Fees”).

8. It is a condition of this Agreement that the Client shall enter into such Licence Agreements and/or accept Third Party Terms issued by the Third Party where the Client must directly contract with that Third Party as so prescribed by the relevant suppliers of each Third Party Services identified within this Agreement and/or in the applicable Order Form. In the event the Client does not enter into or accept the terms of such Licence Agreements and/or Third Party Terms (whether directly contracted with Pentiq or the relevant Third Party), Pentiq reserves the right to suspend the provision of the Services until such time as the Client enters into such Licence Agreement and/or accepts such Third Party Terms.

9. Subject to the terms of any relevant Order Form, the Client shall indemnify Pentiq against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Pentiq in connection with any claim made against Pentiq by a Third Party for actual or alleged breach of such Licence Agreements and/or Third Party Terms by the Client.

10. The Client acknowledges that it is responsible for ensuring that the Client’s Hardware, Client’s System and operating software for such Hardware is compatible with the Third Party Services and Pentiq gives no warranty in relation thereto unless agreed otherwise in writing between the Parties in the Order Form.

11. The Client acknowledges that all back-up shall be the sole responsibility of the Client.

12. Except as expressly provided in this Agreement and subject to Clause 9 and the Data Processing Agreement, the Client assumes sole responsibility for results obtained from the use of any Third Party Services and for conclusions drawn from such use. Pentiq shall have no liability for any inaccuracies, errors and/or omissions in any information, instructions or other outputs provided in connection with such Third Party Services or any actions taken by Pentiq at the Client’s direction. 

13. EXCLUSIONS, LIMITATIONS OF LIABILITY, WARRANTIES AND INDEMNITIES

1. The Client acknowledges and agrees that, except as expressly provided in this Agreement or unless it is a Service under a relevant Order Form, the Client assumes sole responsibility for:

2. all problems, conditions, delays, delivery failures (including any of those concerning transfer of data) and all other loss or damage arising from or relating to the Client's or its agents' or contractors' (including any existing service provider's) network connections, telecommunications links or facilities, including the internet and acknowledges that the Services and the Deliverables may be subject to limitations, delays and other problems inherent in the use of such connections, links or facilities; and 
3. loss or damage arising from or relating to any Relief Event.

2. This Clause 13 sets out the entire financial liability of each Party (including any liability for the acts or omissions of its employees, agents and subcontractors) in respect of:

2. any breach of this Agreement; and 
3. any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement. 

3. Nothing in this Agreement excludes or limits either Party’s liability for:

4. its payment obligations in respect of the Services;
5. death or personal injury caused by negligence;
6. wilful misconduct, gross negligence, fraud or fraudulent misrepresentation; or
7. any other liability which cannot lawfully be excluded or limited.

6. Any liability arising from or in connection with Clause 9, the Data Processing Agreement and/or Applicable Data Protection Laws in connection with the Services shall be limited to five hundred thousand pounds (£500,000) in the aggregate, and shall count towards, and not be in addition to, the cap set out in Clause 13.5.

7. The Parties’ total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement (including liability for any indemnities provided by Pentiq hereunder) shall be limited to one hundred and twenty five percent (125%) of the price paid for the affected Services during the twelve (12) months preceding the date on which the claim arose.

8. Except as expressly and specifically provided in this Agreement and subject to Clauses 13.3, 13.4, Clause 9 and the Data Processing Agreement, neither Party shall have any liability for any losses or damages which may be suffered by the other Party (or any person claiming under or through that Party), which fall within any of the following categories:

7. loss of profits;
8. loss of anticipated savings;
9. loss of business opportunity;
10. loss of goodwill and reputation; 
11. loss of, damage to or corruption of data;
12. loss of, damage to or corruption of business, information technology and communication systems, including the Client’s Systems and or Business Systems; and/or
13. indirect or consequential loss. 

10. Subject to Clauses 13.3 and 13.4, any applicable Service Level Arrangements state the Client's full and exclusive right and remedy, and Pentiq's only obligation and liability, in respect of the performance and availability of the Services, or their non-performance and non-availability.

11. Pentiq shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Pentiq by the Client in connection with the Services, or any actions taken by Pentiq at the Client's direction.

12. Except as expressly and specifically provided in this Agreement all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

13. Any indemnity provided by Pentiq set out in this Agreement shall be subject to the process in Clause 10.7 and shall not apply otherwise.  

14. THIRD PARTY CLAIMS

1. Subject to Clause 9 and the Data Processing Agreement, if Pentiq and, or any of its affiliates, employees, agents, subcontractors, contractors, consultants or suppliers (the “Indemnitees”) receive a claim, action or judgment (“Claim”) relating to this Agreement or the Services from a third party arising out of or in connection with:

2. the Client’s (and, or, where applicable, End User’s) actual or alleged negligence or breach of Applicable Law (including Applicable Data Protection Laws, cyber security laws and, or the Computer Misuse Act 1990, or other equivalent); and, or
3. breach of the Client’s (and, or, where applicable, End User’s) agreement(s) with its own customers or end users or any negligent or tortious act or omission, then the Client shall indemnify, and shall procure that the End User shall indemnify, the Indemnitees and pay the cost of defending the Claim or arising in connection with such Claim, including 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 reasonable legal costs) suffered or incurred by any Indemnitees arising out of or in connection with any costs, damages, award, judgment, fine or other amount that is imposed on or incurred by the Indemnitees as a result of the Claim. 

2. The Client’s obligations to indemnify the Indemnitees, and to procure that the End User will indemnify the Indemnitees, under this Clause shall include Claims arising out of the acts and, or omissions of the Client’s and, or End User’s employees, subcontractors, contractors, consultants, suppliers and, or agents, and, or any other person to whom the Client and, or End User has given access to the Services, and any person who gains access to the Services as a result of the Client’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorised by the Client.

15. CONFIDENTIALITY

3. Each Party agrees and undertakes that it will treat all Confidential Information disclosed to it by the other Party in connection with the Services as strictly confidential and shall use it solely for the purpose intended by the Services and shall not, without the prior consent of the other Party, publish or otherwise disclose to any third party any such Confidential Information except for the purposes intended by the relevant Order Form.

4. To the extent necessary to implement the provisions of any Services, each Party may disclose Confidential Information to its Representatives, in each case under the same conditions of confidentiality as set out in Clause 15.1.

5. The obligations of confidentiality set out in this Clause 15 shall not apply to any information or matter which: (i) is in the public domain other than as a result of a breach of this Agreement; (ii) was in the possession of the receiving Party prior to the date of receipt from the disclosing Party or was rightfully acquired by the receiving Party from sources other than the disclosing Party; (iii) is required to be disclosed by law, or by a competent court, tribunal, securities exchange or regulatory or governmental body having jurisdiction over it wherever situated; or (iv) was independently developed by the receiving Party without use of or reference to the Confidential Information.

16. TERM AND TERMINATION

2. This Agreement shall commence on the Commencement Date and each Order Form shall commence on either the Commencement Date or the Services Commencement Date, as applicable and shall remain in full force for the Initial Term unless otherwise specified in the Order Form or earlier terminated in accordance with the provisions of this Agreement or of any Order Form as the case may be. Thereafter, this Agreement and, unless stated otherwise in the relevant Order Form,  each Order Form shall continue to automatically renew for a Subsequent Term, unless a Party gives written notice to the other Party, not later than ninety (90) days before the end of the Initial Term or the relevant Subsequent Term, to terminate this Agreement or an Order Form (as the case may be). 

3. Without prejudice to any rights that the Parties have accrued under this Agreement or any of their respective remedies, obligations or liabilities, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if:

3. the other Party commits a material breach of any material term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified to do so;
4. the other Party suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
5. the other Party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

5. In addition to the above, Pentiq may terminate this Agreement with immediate effect by giving written notice to the Client for the Client's non-payment or late payment of any undisputed invoice, or undisputed amount of any disputed invoice, and the Client fails to remedy that breach within a period of seven (7) days after being notified to do so.

6. If for any reason a contract between a Third Party and Pentiq relating to Pentiq’s right to use, install, support or provide Third Party Services which is the subject of the Agreement is terminated, then the Agreement or applicable Order Form (as the case may be) shall automatically terminate, save that where the contract relates to other Services other than that Third Party Service, termination of the Agreement or applicable Order Form shall operate only in so far as it relates to such Third Party Services.

7. On termination of this Agreement for any reason:

4. Pentiq shall immediately cease provision of the Services;
5. the Client shall pay any and all invoices and sums due and payable up to and including the date of termination including (i) all remaining amounts owing up to the end of the Initial Term or the Subsequent Term (as applicable); (ii) any Licence Fees as set out under Clause 12.2; and (iii) any termination fees that Pentiq incurs from any of the Third Parties as a consequence of such early termination.  Pentiq shall use reasonable endeavours to mitigate any loss but the Client acknowledges and agrees that any Third Party fees may not be mitigated by Pentiq and the Client shall not hold Pentiq responsible if its incurs full termination fees; 
6. all licences granted under the Agreement, including any access to the Platform, will automatically terminate immediately except for fully-paid, fixed term and perpetual licences;
7. each Party shall use reasonable endeavours to return and make no further use of any equipment, property, materials and other items (and all copies of them) (“Materials”) belonging to the other Party. If the Client fails to do so, then Pentiq may enter the Client’s premises and take possession of Pentiq's Materials. Until Pentiq's Materials have been returned or repossessed, the Client shall be solely responsible for its safe keeping.

6. Termination of an Order Form shall:

2. not by default, terminate other Order Forms nor this Agreement; and 
3. be without prejudice to any other rights which any Party may have under any other Order Form.

10. On termination of the Agreement pursuant to this Clause 16, this Agreement shall terminate automatically.

11. Termination of the Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the Parties existing at termination.

12. Upon termination or expiry of the Agreement or the relevant Order Form, Pentiq shall deal with Client Personal Data in accordance with the Data Processing Agreement. Subject to the foregoing, Pentiq shall only retain other Client Data for a maximum period of three (3) months from the date of termination or expiry and may delete all copies of such Client Data after that three (3) month period has ended. 

13. 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 the Agreement shall remain in full force and effect.

17. STAFF TRANSFER AND NON-SOLICITATION

4. It is not intended that any staff be transferred from Pentiq to the Client or from the Client to Pentiq pursuant to this Agreement or that any ‘relevant transfer’ occur for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006.

5. Neither Party shall solicit the other Party’s staff or contractors who have been employed or engaged in the Services or the performance of this Agreement during the lifetime of this Agreement and for a period of nine (9) months thereafter. For the purposes of this Clause ‘solicit’ means the soliciting of such person with a view to engaging such person as an employee, director, sub‑contractor or independent contractor.

6. In the event that either Party is in breach of Clause 17.2 above, then the Party in breach shall pay to the other by way of liquidated damages an amount equal to fifty percent (50%) of the gross annual salary or budgeted fee income (as at the time of the breach or when such person was last in the service of the relevant Party) of the person so employed or engaged. This provision shall be without prejudice to either Party’s ability to seek injunctive relief.

7. The Parties hereby acknowledge and agree that the formula specified in Clause 17.3 above is a reasonable estimate of the loss which would be incurred by the loss of the person so employed or engaged.

18. RELIEF EVENTS

Subject to Clause 13.3, and notwithstanding any other provision of this Agreement, Pentiq shall have no liability for failure or delay to perform the Services or its other obligations under this Agreement if it is prevented, hindered or delayed in doing so as a result of any Relief Event.

19. FORCE MAJEURE

1. Pentiq shall have no liability to the Client under this Agreement and the Client shall have no obligation to pay the Fees for the affected Services if Pentiq is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by an event outside of the reasonable control of Pentiq except to the extent that Pentiq could reasonably have avoided such circumstances by fulfilling its obligations in accordance with the terms of this Agreement or otherwise exercising the level of diligence that could reasonably have been expected of it (having exercised Good Industry Practice) including, but not limited to, strikes, computer viruses and malware, pandemics, epidemics, lock-outs or other industrial disputes (excluding any industrial disputes involving the workforce of Pentiq), act of God, war, riot, civil commotion, compliance with any law or regulation, fire, flood or storm (each a “Force Majeure Event”), provided that:

2. the Client is notified of such an event and its expected duration; and 
3. Pentiq uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned, and that if the period of delay or non-performance continues for four (4) weeks or more, the Party not affected may terminate this Agreement by giving fourteen (14) days' written notice to the other Party. 

20. ANTI-BRIBERY AND MODERN SLAVERY

1. Pentiq shall:

2. comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption, including the Bribery Act 2010;
3. promptly report to the Client any request or demand for any undue financial or other advantage of any kind received by Pentiq in connection with the performance of this Agreement. 

4. Pentiq shall procure that any person associated with Pentiq, who is performing services in connection with this Agreement, adheres to terms equivalent to those imposed on Pentiq in this Clause 20 (“Relevant Terms”). Pentiq shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to the Client for any breach by such persons of any of the Relevant Terms.

5. For the purpose of this Clause 20, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) of that Act and section 8 of that Act respectively. For the purposes of this Clause 20 a person associated with Pentiq includes any subcontractor of Pentiq.

6. In performing its obligations under this Agreement, Pentiq shall:

2. comply with all applicable anti-slavery and human trafficking laws, statutes, regulations from time to time in force including the Modern Slavery Act 2015; and
3. not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK. 

21. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

22. SEVERANCE

2. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.

3. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the Parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties' original commercial intention.

23. ENTIRE AGREEMENT AND AMENDMENT

4. This Agreement, including the Order Form, the Data Processing Agreement, Third Party Terms, Licence Agreements and any other documents incorporated by reference constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.

5. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.

6. Each Party agrees that its only liability in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.

7. Except to the extent provided for in Clause 2.2, no alteration to or variation of or other amendment or purported amendment to this Agreement or any Order Form shall be binding on the Parties until the same is in writing and signed on behalf of each of the Parties by a duly authorised representative.

24. ASSIGNMENT

2. The Client shall not without the prior written consent of Pentiq (such consent not to be unreasonably withheld or delayed) assign, transfer, charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, nor sub-contract any or all of its obligations under this Agreement.

3. Pentiq shall not without the prior written consent of the Client, such consent not to be unreasonably withheld or delayed, assign, transfer, charge or deal in any other manner with either the benefit or the burden of this Agreement or any of its rights or obligations under it, or purport to do any of the same, save that Pentiq may use subcontractors in accordance with Clause 3.3 and may appoint sub-processors in accordance with the Data Processing Agreement.

25. NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, nor authorise any Party to make or enter into any commitments for or on behalf of any other Party.

26. THIRD-PARTY RIGHTS

This Agreement is made for the benefit of the Parties, to it and (where applicable) their successors and permitted assigns and is not intended to benefit or be enforceable by anyone else.

27. NOTICES

1. Any notice or other communication required to be given to a Party under or in connection with this Agreement shall be in writing and shall be 

2. delivered by hand or sent by pre-paid first class post or other next Business Day delivery service to that Party’s registered office, if a company, or otherwise to its principal place of business; or
3. sent by email:

2. in the case of notices to Pentiq, to legals@pentiq.com or such other email address as Pentiq may notify from time to time; and
3. in the case of notices to the Client, to the email address set out in the Order Form or such other email address as the Client may notify from time to time.

4. Any notice or communication shall be deemed to have been received (a) if delivered by hand, on signature of a delivery receipt, or otherwise at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or (b) if delivered by email, at the time of transmission, or, if this time falls outside Normal Business Hours, when Normal Business Hours resume.

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

6. Each party shall as soon as reasonably practicable notify the other of any change to their contact details. 

28. DISPUTE RESOLUTION

2. If a dispute arises under this Agreement (“Dispute”), including any Dispute arising out of any amount due to a Party hereto, then before bringing any suit, action or proceeding in connection with such Dispute, a Party must first give written notice of the Dispute to the other Party describing the Dispute and requesting that it is resolved under this dispute resolution process (“Dispute Notice”).

3. If the Parties are unable to resolve the Dispute within thirty (30) calendar days of delivery of the Dispute Notice, then each Party will promptly (but no later than five (5) Business Days thereafter):

2. appoint a designated representative who has sufficient authority to settle the Dispute and who is at an equivalent or higher management level than the person with direct responsibility for the administration of this Agreement (“Designated Representative”); and 
3. notify the other Party in writing of the name and contact information of such Designated Representative.

4. The Designated Representatives will then meet as often as they deem necessary in their reasonable judgment to discuss the Dispute and negotiate in good faith to resolve the Dispute. The Designated Representatives will mutually determine the format for such discussions and negotiations, provided that all reasonable requests for relevant information relating to the Dispute made by one Party to the other Party will be honoured.

5. If the Parties are unable to resolve the Dispute within thirty (30) calendar days after the appointment of both Designated Representatives, then either Party may proceed with any other available remedy. 

29. MARKETING 

Both Parties agree to reasonably cooperate in connection with the creation of mutually beneficial marketing communications, which shall include, at a minimum, a press release, case study and a reference to the Client on Pentiq’s website, provided that in no event shall either Party use the name, trademarks or other proprietary identifying symbols of the other Party without such Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. 

30. GOVERNING LAW AND JURISDICTION

2. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England.

3. The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

Updated:08 May 2026