AGRIGATE ONE LIMITED

ONEPACK TERMS AND CONDITIONS

These terms and conditions govern the provision of Technology and Services by Agrigate One Limited (Registration Number 11546988) ("AgrigateOne") to the customer identified in the applicable Order Form ("Customer")

1. Definitions
1. The definitions and rules of interpretation in this clause apply in the Contract.

Acceptance means actual or deemed acceptance (as provided for in these Conditions or an Order Form) of the Technology provided by or on behalf of AgrigateOne to the Customer in terms of an Order Form.

Adaptation means any adaptation, change, improvement, update or derivative of or to the Proprietary Software.

Adverse Consequences means any claim, cost, damage, loss, expense, penalty, injury or other adverse consequence, whether arising before or after the term of the Contract.

Affiliate means an entity that controls, is controlled by, or is under common control of a Party or otherwise affiliated to the relevant Party concerned, including (without limitation) holding companies and subsidiaries within the same group of companies.

Authorised User means an employee, contractor, or staff member of the Customer who is authorized by the Customer to use the Technology and Services, provided that the Customer remains fully liable for all acts and omissions of such Authorised Users as if they were acts or omissions of the Customer itself.

Business Day means any day which is not a Saturday, Sunday, or official public holiday in the Republic of South Africa.

Charges means any fees, charges and other recoverable amounts payable by the Customer to AgrigateOne as specified in the applicable Order Form.

Commencement Date means the date the Contract is entered into as stated in the Order Form.

Conditions means these terms and conditions set out in clause ‎1 (Definitions) to clause ‎25 (General), which together with each Order Form constitute the binding agreement between the parties for the provision of Technology and Services.

Contract means the contract between AgrigateOne and the Customer for the supply of Technology and Services, comprised of these Conditions and each Order Form executed by the parties from time to time.

Customer Data means any data inserted into a Technology by the or on behalf of the Customer.

Data Subject means an identifiable, natural person to whom Personal Information relates.

Defect means a failure of the Technology to function substantially in accordance with the prevailing Documentation.

Documentation means (1) the functional, technical and other specifications or operating instructions of the Technology, (2) the dependencies and minimum requirements to be able to use the Technology and/or (3) user instructions or guides, all as may be published by AgrigateOne from time to time.

Firmware means any Proprietary Software or Third-Party Software that is embedded on Proprietary Hardware.

Force Majeure Event has the meaning set out in clause ‎20.1.

Hardware means Proprietary Hardware and/or Third-Party Hardware, as set out in an Order.

Inflation Rate means the average consumer price index for the preceding year as published by Statistics South Africa or failing such publication, a substantially similar cost-of-living increase over the same time selected by AgrigateOne in its reasonable discretion.

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

Order means a binding order in writing for the provision of Technology and/or Services to be supplied by or on behalf of AgrigateOne to the Customer, as documented in an Order Form.

Order Form means each order form entered into between the parties which incorporates these Conditions by reference and which shall contain, without limitation, a description of the Technology and/or Services to be provided, the applicable Charges, payment terms, and the term of such Order.

Personal Information has the same meaning as defined in POPIA, as may be augmented by applicable Privacy Law.

POPIA means the Protection of Personal Information Act, No. 4 of 2013, as amended, which shall be deemed to be fully in force for purposes of the Contract.

Privacy Law means POPIA and any other privacy law or legislation that may apply to Personal Information that may Processed under the Contract.

Process has the same meaning as assigned to “processing” defined in POPIA, and “Processed” shall be construed accordingly.

Professional Services means consulting, development, training and other professional services rendered by or on behalf of AgrigateOne to the Customer, as set out in an Order.

Proprietary Hardware means hardware procured by or on behalf of AgrigateOne for the Customer that is designated as proprietary to AgrigateOne or its Affiliate or licensors, as specified in an Order.

Proprietary Software means software that is licenced to the Customer by or on behalf of AgrigateOne, its Affiliates or its licensors and which is designated as proprietary to them, as specified in an Order.

Prime Rate means the publicly quoted prime overdraft rate charged by HSBC Bank Limited from time to time, calculated daily and compounded monthly, and in the event of a dispute arising between the Parties as to the aforesaid rate of interest, a certificate issued by any branch manager of the said bank confirming the rate shall be evidence of such rate until proven otherwise (i.e. prima facie proof).

Roadmap means the document published and updated by AgrigateOne, from time to time that sets out the current short, medium and long term development goals for the Proprietary Software.

Services means any services rendered by or on behalf of AgrigateOne to the Customer in terms of the Contract, including Professional Services and Support Services.

Support Services means services rendered by or on behalf of AgrigateOne in support of the Technology to the Customer, as set out in an Order.

Software means Proprietary Software and/or Third-Party Software, as set out in an Order.

Technology means any Proprietary Hardware, Proprietary Software, Third-Party Hardware, Third-Party Software or other technology that may be supplied by or on behalf of AgrigateOne to the Customer in terms of Orders executed under the Contract.

Third-Party Hardware means hardware procured by or on behalf of AgrigateOne for the Customer that is not Proprietary Hardware, as specified in an Order.

Third-Party Software means software that is procured by or on behalf of AgrigateOne for the Customer and which is not Proprietary Software, as specified in an Order.

1. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular and a reference to one gender shall include a reference to the other genders.
2. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract and shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
3. A reference to writing or written includes email.

• Consumer protection legislation

1. The Customer warrants, as a material term of the Contract, that it is entering into this Contract wholly or mainly for the purposes of carrying on a business and does not qualify as a "consumer" as defined in the Consumer Protection Act, No. 68 of 2008, as may be amended, and that it shall not qualify as such at any time during the Term. The Customer further warrants that the transaction value under this Contract exceeds the threshold prescribed in the Consumer Protection Act for application to the Customer.
2. The Customer acknowledges and agrees that AgrigateOne is entering into the Contract on the strength of the aforesaid warranty. The Customer accordingly agrees to keep AgrigateOne indemnified from any claims, penalties and other adverse consequences that may arise from a breach of the aforesaid warranty, however arising.

• Term and termination

1. The Contract shall commence on the Commencement Date and shall continue for the Term as set out in the Order Form, unless terminated earlier in accordance with these Conditions.
2. Unless otherwise terminated in accordance with clause ‎18 (Breach), each Order Form may be renewed for such further periods as may be agreed between the parties in writing and set out in an amendment to the relevant Order Form or a new Order Form.
3. AgrigateOne shall provide the Technology and Services to the Customer from the date specified in each Order Form (provided that the Customer has paid to AgrigateOne any deposit or initial payment as set out in that Order Form) in accordance with and subject to these Conditions and the relevant Order Form, for the term specified in that Order Form.
4. Upon termination or expiry of an Order Form for any reason, the Customer shall have a period of 90 (ninety) days to retrieve and download all Customer Data associated with that Order Form. AgrigateOne shall provide reasonable assistance to facilitate such retrieval, provided that the Customer's account is up to date and all outstanding Charges have been paid in full. After the expiry of the 90 (ninety) day period, AgrigateOne shall be entitled to permanently delete all Customer Data associated with the terminated Order Form and shall have no further obligation to retain or provide access to such data. The Customer acknowledges that AgrigateOne may charge reasonable fees for data retrieval assistance beyond standard export functionality, and that the Customer is solely responsible for ensuring the completeness and accuracy of all retrieved data.
5. Upon termination or expiry of an Order Form, the Customer shall immediately cease all use of the Technology provided under that Order Form and shall, at AgrigateOne's election, either return or certify the destruction of any Proprietary Hardware, Proprietary Software, and Documentation provided under that Order Form, save to the extent that the Customer has purchased and paid for Hardware in full, in which case ownership of such Hardware (but not the Firmware or embedded software) shall remain with the Customer. Any Hardware to be returned shall be returned at the Customer's cost and risk, in good working condition (reasonable wear and tear excepted), within 30 (thirty) days of termination or expiry. The Customer shall remain liable for any loss or damage to Hardware pending its return to AgrigateOne.

• Orders

1. The parties may from time to time enter into Order Forms for the provision of Technology and Services. Each Order Form shall incorporate these Conditions by reference and, upon signature by both parties, shall constitute a binding agreement governed by these Conditions.
2. The Customer understands and agrees that each Order Form has its own scope, which shall not automatically or by implication include items not expressly set out in that Order Form. Specifically, Professional Services or Support Services are not automatically included in any Order Form, unless and to the extent otherwise specified in the relevant Order Form. Each Order Form constitutes a separate and independent agreement, and the termination of one Order Form shall not affect the validity or continuation of any other Order Form, unless otherwise agreed in writing.
3. Each Order Form shall be deemed to incorporate the Conditions. In the event of any conflict between the Conditions and the terms of any Order Form, the Conditions shall prevail unless the Order Form expressly provides otherwise.

1. As between Order Forms, later Order Forms shall take precedence over earlier Order Forms in respect of the same subject matter, except if the relevant Order Form expressly provides otherwise.

• Proprietary Software

1. Where an Order Form provides for AgrigateOne to license any Proprietary Software to the Customer, the terms of this clause ‎5 shall apply to such license.
2. With effect from the date specified in the relevant Order Form and for the term set out in that Order Form, AgrigateOne grants the following rights in respect of the Proprietary Software to the Customer, subject to the Customer's compliance with these Conditions and the applicable Order Form:
1. the Customer shall be entitled to use the Proprietary Software solely for its internal business purposes and only by Authorised Users. The Customer shall be responsible for all acts and omissions of its Authorised Users and shall ensure that all Authorised Users comply with the terms of this Contract. The Customer shall implement reasonable security measures to prevent unauthorized access to or use of the Proprietary Software.
2. the rights granted in terms hereof are non-exclusive to the Customer.
3. the Customer shall not be entitled to make Adaptations to the Proprietary Software.
4. the Customer shall not be entitled to sublicence the Proprietary Software.
5. the licence granted to the Customer is personal and shall not be transferable or capable of sub-licence.
6. the Customer shall only be entitled to use the Proprietary Software within the territory of the Republic of South Africa. Any use of the Proprietary Software outside South Africa requires AgrigateOne's prior written consent and may be subject to additional Charges and terms.
3. AgrigateOne undertakes to keep the Roadmap updated and to share the relevant contents thereof with the Customer as long as it maintains a valid Order Form for the relevant Proprietary Software. The Customer understands that the Roadmap is indicative only and does not constitute a binding commitment, warranty, or guarantee of future functionality. The Roadmap is in the sole and unfettered discretion of AgrigateOne, who shall be entitled to change, delay, or cancel any planned features or developments at any time without prior notice to or approval from the Customer and without any liability whatsoever. The Customer acknowledges that it has not relied on any representations in the Roadmap in entering into this Contract and that the Roadmap forms no part of the contractual obligations of AgrigateOne.
4. The Customer may not, or cause or assist any other person, during the term of the Contract or at any time thereafter, to:
1. use the Proprietary Software in contravention of the Contract and the Documentation;
2. directly or indirectly use or offer the Proprietary Software on a bureau or hosted basis to third parties, nor allow a third party to operate the Proprietary Software as part of outsource or other arrangement;
3. modify or reverse engineer the Proprietary Software;
4. create derivative works of the Proprietary Software;
5. copy the Proprietary Software, otherwise than for reasonable backup purposes kept in safe storage;
6. remove any copyright or other notices generated by the Proprietary Software; or
7. use the Proprietary Software for fraudulent, unlawful or illegal purposes.
5. All rights not expressly granted by AgrigateOne to the Customer in relation to Proprietary Software or otherwise shall remain reserved to AgrigateOne.

• Third-Party Software

1. Any Third-Party Software provided by AgrigateOne to the Customer shall be subject to the licence and other terms of the licensor thereof from time to time.
2. The Customer understands and agrees that AgrigateOne shall have no liability whatsoever in respect of any Defect, failure, inadequacy or other Adverse Consequences that may arise from the use of Third-Party Software, and that the Customer's sole recourse shall be against the licensor of such Third-Party Software in accordance with the applicable third-party licence terms. AgrigateOne makes no representations or warranties, express or implied, regarding Third-Party Software.
3. The Customer further understands that it may have to enter into a separate support and maintenance agreement with the licensor of Third-Party Software in order to obtain such services.

• Provision of Hardware

1. AgrigateOne shall procure and deliver the Hardware on behalf of the Customer to the Customer's nominated delivery address and substantially within the timeframes set out in the Order Form.
2. The risk in and to any Hardware shall pass to the Customer upon the delivery thereof to the Customer's physical address. AgrigateOne reserves the right to recover the costs associated with such delivery at its prevailing rate.
3. The ownership of Hardware, exclusive of the Intellectual Property Rights vesting in the Firmware, shall pass to the Customer upon payment in full.
4. The Customer agrees that:
1. the Proprietary Software embedded in the Firmware shall be regulated by the provisions of clause ‎5 (Proprietary Software); and
2. the Third-Party Software embedded in the Firmware shall be regulated by the provisions of clause ‎6 (Third-Party Software).
5. AgrigateOne shall remedy Defects in any Proprietary Hardware provided to the Customer for a period of 180 (one hundred and eighty) days from the date of first use by the Customer.

• Provision of Third-Party Hardware

1. Any Third-Party Hardware provided by AgrigateOne to the Customer shall be subject to the warranty (if any) and other terms of the third-party supplier thereof. The Customer acknowledges that it may need to enter into a separate contract with said vendor if it requires additional comfort.
2. The Customer understands and agrees that AgrigateOne shall have no liability whatsoever in respect of any Defect, failure, inadequacy or other Adverse Consequences that may arise from the use of Third-Party Hardware, and that the Customer's sole recourse shall be against the supplier of such Third-Party Hardware in accordance with the applicable third-party warranty terms (if any). AgrigateOne makes no representations or warranties, express or implied, regarding Third-Party Hardware.

• Documentation

1. The Customer agrees to use any Technology provided in terms of the Contract in accordance with the prevailing Documentation.
2. AgrigateOne shall be entitled to update the Documentation from time to time in its discretion, with the updated Documentation taking effect on the publication thereof. While AgrigateOne shall use its best endeavours to notify Customer of material changes to the Documentation in advance, it shall be the Customer's responsibility to stay abreast of the Documentation.
3. The Customer acknowledges and agrees that it is the Customer's responsibility to maintain computing and telecommunications infrastructure set out in the Documentation to be able to use the Technology.
4. AgrigateOne may on no less than 12 (twelve) months' prior written notice to the Customer declare any Technology as having reached end of life ("EOL"), in which case the relevant Order Form(s) shall terminate without penalty at the end of the notice period. AgrigateOne shall use its best efforts to provide the Customer with an upgrade path to a supported Technology in the case of an EOL declaration, but cannot guarantee that this will always be possible, and may additionally require that Professional Services be agreed in an Order at the Customer's cost for any work relating to the management of EOL events.
5. Further to the preceding clause and for the avoidance of doubt, it shall not be necessary for AgrigateOne to give notice of its intention to declare a Technology as EOL if, at the Commencement Date or at the effective date of an Order Form, the Documentation already listed the relevant Technology as EOL.

• Support Services

1. The provisions under this clause ‎9 shall apply as the default Support Services level, unless the Customer has entered into an Order Form specifying a higher level of Support Services and such Order Form remains in force and effect.
2. The Customer shall be entitled to receive telephonic or other remote technical support to fix any Defects in the Proprietary Software or Proprietary Hardware, provided that the Customer report Defects as soon as reasonably possible.
3. AgrigateOne shall not be obliged to provide Support Services where:
1. the Customer's account is not up to date;
2. the Customer has not reported the Defect within a reasonable time, having regard to the nature and severity of the Defect;
3. the Defect arose from an unauthorised modification made by or on behalf of the Customer;
4. the Customer or Authorised Users failed to use the Technology in accordance with the Documentation;
5. the Customer or Authorised Users failed to use any new or corrected versions of the Technology;
6. in respect of Proprietary Hardware, the Defect is reported more than 180 (one hundred and eighty) days after delivery of the relevant Proprietary Hardware to the Customer, unless the Customer has entered into an Order Form for extended Support Services covering such Hardware; or
7. the Customer or Authorised Users failed to properly operate and/or maintain and support the operating environment in accordance with the Documentation.
4. In the event that AgrigateOne agrees to render any services outside of the agreed scope set out immediately above and elsewhere in the Contract, it shall be entitled to recover the additional charges in respect thereof at the prevailing Professional Services Fee.
5. In consideration of the provision of the Technology and Services by AgrigateOne, the Customer shall pay the Charges detailed in and on the basis set out in the applicable Order Form(s).

• Charges and payment

1. In addition to any agreed Charges, AgrigateOne shall be entitled to recover from the Customer all necessary travel, accommodation and sustenance expenses incurred in the performance of any work at the Customer's location. Unless otherwise agreed, expenses relating for travel by own vehicle shall be recovered at the rate set by the Automobile Association from time to time.
2. All Charges shall automatically escalate at each anniversary of the relevant Order Form at the Inflation Rate.
3. AgrigateOne shall deliver a valid tax invoice to the Customer when any payment is due and payable in terms of the applicable Order Form.
4. Unless otherwise stated in the applicable Order Form, invoices that pertain to fixed Charges shall be payable monthly in advance and invoices that pertain to variable Charges shall be payable monthly in arrears.
5. Invoices shall be payable no later than 25 (twenty-five) days from date of invoice, or such other period as is specified in the applicable Order Form.
6. AgrigateOne designates the following commercial bank account in the United Kingdom (hereafter "AgrigateOne Bank Account") to receive payments in terms of the Contract:
1. Bank: HSBC UK Plc
2. Branch Name: South London Business Banking
3. Account Name: Agrigate One Limited
4. Sortcode: 400629
5. Account Number: 32204789
6. Branch Identifier code: HBUKGB4107P
7. International Bank account number (IBAN): GB45HBUK40062932204789
8. Address: 165 Fleet Street, London, EC4A 2DY
7. Payments must be made free of exchange and without deduction, setoff or demand.
8. In order to limit the risk of payment related fraud, the Customer agrees to independently verify via its bankers that the nominated account in fact belongs to AgrigateOne before attempting to make payment.
9. An amount shall be deemed as paid by the Customer to AgrigateOne when the AgrigateOne Bank Account has been credited with the amount.
10. All amounts stated in any Order Form are exclusive of applicable value-added or sales taxes. The Customer shall accordingly in addition to any Charges be liable to pay the applicable value-added or sales taxes thereon.

• Customer Data

1. The Customer shall retain all rights to the Customer Data.
2. The Customer hereby licences AgrigateOne to use the Customer Data only for the purpose of performing its obligations in terms of the applicable Order Form(s), which licence shall lapse at the termination of the applicable Order Form(s) and for a period of 90 (ninety) days thereafter.
3. The Customer indemnifies AgrigateOne from any Adverse Consequences that may arise from AgrigateOne's use or access of the Customer Data within the provisions of this clause ‎11 and in accordance with the Customer's lawful instructions, including the deletion of such data when AgrigateOne is required to do so at the termination of its entitlement to access and use Customer Data, provided that such indemnity shall not apply to the extent that such Adverse Consequences arise from AgrigateOne's negligence, willful misconduct, or breach of this Contract.

• Protection of Personal Information

1. The Parties record that in the performance of the Contract, AgrigateOne may Process certain Personal Information on behalf of the Customer and in doing so, AgrigateOne must rely on the Customer's compliance with applicable Privacy Law. The Customer accordingly hereby undertakes, warrants and represents in favour of AgrigateOne that it shall:
1. comply with the requirements of applicable Privacy Law and the requirements for the lawful Processing of Personal Information;
2. provide reasonable evidence of its compliance with applicable Privacy Law upon request by AgrigateOne; and
3. procure that third parties directly or indirectly involved in the execution of the Contract likewise comply with the obligations imposed by this clause ‎12.
2. If in the performance of any Order Form the co-operation of AgrigateOne is required for the Customer to comply with its obligations under applicable Privacy Law, AgrigateOne shall be entitled to recover the costs arising from such assistance from the Customer on demand.
3. It is recorded and agreed that AgrigateOne Processes Personal Information for and on behalf of the Customer as a data processor (operator) under POPIA. The Customer, as data controller (responsible party), must accordingly ensure that AgrigateOne is lawfully entitled to do so, which shall include that the Customer is responsible for obtaining and maintaining any third-party consents which may be required by applicable Privacy Law. AgrigateOne shall Process Personal Information in accordance with POPIA and the Customer's lawful written instructions.
4. The Customer hereby indemnifies and holds harmless AgrigateOne from any cost, claim, damage, loss, expense or penalty that may arise from a breach of the Customer's obligations under this clause ‎12, including reasonable legal costs.

• Confidential information

1. It is recorded that by virtue of these Conditions and any Order Form(s), the Parties may have access to each other’s confidential and proprietary information, know-how and trade secrets (hereafter "Confidential Information"), which shall include (without limitation) for purposes hereof:
1. the terms of these Conditions and any Order Form(s) and any disputes arising therefrom;
2. the Documentation,
3. material, ideas, technical, commercial, financial data, processes, methods of operating, records, diagrams, specifications, schematics, databases that relates to either Party's research and development or business affairs;
4. the Intellectual Property Rights of a Party; and
5. other matters which relate to the business of either Party and in respect of which information is not readily available in the ordinary course of business to a competitor.
2. The Parties agree and undertake in favour of each other for the term of these Conditions and a period of 3 (three) years thereafter, to maintain the confidentiality of the Confidential Information that may be disclosed between them and specifically not to disclose such information to any third party, except insofar as permitted in terms of these Conditions or any Order Form.
3. The obligations of confidentiality under clause ‎13.2 above shall not apply to:
1. disclosure on a need-to-know basis, strictly necessary for the performance of obligations in terms of these Conditions or any Order Form;
2. information which is independently developed by or acquired from a third party;
3. the disclosure of information to the extent required to be disclosed by law, binding order of competent authority or otherwise as essential for application in judicial action;
4. the disclosure in confidence to a Party's professional advisors of information reasonably required to be disclosed for a purpose reasonably incidental to these Conditions or any Order Form; and
5. information which comes within the public domain otherwise than as a result of a breach of this clause ‎13.
4. The Party seeking to rely on an exclusion in clause ‎13.3 shall bear the onus of proof that such exclusion applies to the particular facts or circumstances.
5. The Party making a disclosure to a third party permitted by clause ‎13.3 shall procure that such third party complies with the obligations of this clause ‎13.

• Intellectual Property Rights

1. All right, title and interest in and to the Intellectual Property Rights created, adapted or used in the performance of any Order Form, as well as in the Proprietary Software and Proprietary Hardware, shall exclusively vest in AgrigateOne. The Customer hereby cedes and assigns to AgrigateOne, any Intellectual Property Rights of the aforesaid types that may vest in the Customer for whatever reason and further waives any entitlement to assert moral rights and rights of attribution to such Intellectual Property Rights. To the extent that the cession, assignment and waiver of any third parties are required for the Customer to give effect to the aforegoing obligation, the Customer agrees to procure such cession, assignment and waiver.
2. The Customer shall provide reasonable assistance to enable AgrigateOne to register, prove and enforce any Intellectual Property Rights arising from any Order Form, provided that AgrigateOne shall be liable to reimburse the Customer for its reasonable costs in doing so.
3. AgrigateOne shall be entitled to use the Customer's name as a reference in its marketing efforts.
4. Insofar as AgrigateOne is required by the Customer to use any Intellectual Property Rights of the Customer or a third party, the Customer agrees to procure that AgrigateOne is duly licensed to do so at no cost and the Customer shall keep AgrigateOne indemnified from any claim, penalty or other adverse consequence arising from a breach of the aforesaid obligation.
5. Insofar as the Contract may expressly permit the Customer to use specific Intellectual Property Rights of AgrigateOne, such use shall:
1. be subject at all times to the directives and Documentation of AgrigateOne; and
2. terminate upon termination of the applicable Order Form(s) for whatsoever reason, in which event the Customer shall have no further entitlement to use such Intellectual Property Rights in relation to that Order Form.
6. All rights to AgrigateOne's Intellectual Property Rights not expressly granted in these Conditions or any Order Form shall remain reserved to AgrigateOne.

• Sub-contracting

1. AgrigateOne shall be entitled to subcontract any obligation in terms of these Conditions or any Order Form without the prior written approval of the Customer, subject thereto that AgrigateOne shall remain principally liable to the Customer to procure that any of its subcontractors comply with the obligations of AgrigateOne so sub-contracted.

• General warranties

1. Each of the Parties hereby warrant to the other as material warranties, inducing the other to enter into the Contract, that:
1. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Contract;
2. the Contract constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms; and
3. the execution of the Contract and the performance of its obligations hereunder does not and shall not:
1. contravene any law or regulation to which that Party is subject;
2. contravene any provision of that Party's constitutional documents; or
3. conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.
2. The Customer specifically warrants and represents, as severable contractual undertakings, that it has and shall maintain at its cost all the required regulatory approvals and clearances required to implement and give effect to the Contract, including to effect payment to AgrigateOne and to transfer Intellectual Property Rights.

• Withholding tax on royalties

1. The Customer shall be solely responsible for the deduction and withholding of any taxes, levies, duties, or other governmental charges (herein collectively "Withholding Tax") required by applicable laws on any payments due to the AgrigateOne under the Contract.
2. If the Customer is required by law to deduct Withholding Tax from payments, then the sum payable by the Customer upon which the Withholding Tax is calculated shall be increased to the extent necessary to ensure that, after such Withholding Tax is deducted, AgrigateOne receives and retains, free from liability for such Withholding Tax, a net amount equal to the amount AgrigateOne would have received and retained in the absence of such required deduction.
3. The Customer shall promptly furnish AgrigateOne with original or certified copies of all tax forms, receipts, or other relevant documents, evidencing the Customer's compliance with its Withholding Tax obligations.
4. The Customer hereby agrees to indemnify, defend, and hold AgrigateOne and its Affiliates, directors, officers, employees, agents, and contractors harmless against any claims, penalties, or liabilities arising out of or in connection with the Customer's non-compliance with its Withholding Tax obligations, provided that AgrigateOne has provided the Customer with reasonable notice and cooperation in relation to such claims.

• Breach

1. In this clause:
1. "Insolvency Event" means, in relation to an entity, when that entity becomes insolvent, is unable to pay its debts as they fall due or its normal legal capacity is impaired in any manner (by resolution, court order or otherwise), which shall include sequestration, liquidation (either provisionally or finally), business rescue or any occurrence with analogous effect and shall further specifically include the following:
1. the giving of any notice to one or more creditors that the entity cannot pay its debts or any attempt to make an arrangement with any of its creditors for a release from its debts or part thereof;
2. the removal of any of its property with the intent to prejudice creditors or to prefer one creditor above another; and
3. the disposition of any of its property which has or would have the effect of prejudicing its creditors or of preferring one creditor above another.
2. "Event of Default" means if a Party (the "Defaulting Party"):
1. breaches any provision of the Contract and remains in breach for 10 (ten) Business Days after the non-defaulting Party (the "Non-Defaulting Party") has given written notice to rectify that breach; or
2. fails to prevent an Insolvency Event from occurring; or
3. in the case of the Customer, undergoes a change of control without the prior written consent of AgrigateOne, which consent may not be unreasonably withheld or delayed.
2. In the event that the Defaulting Party commits an Event of Default, the Non-Defaulting Party shall, as a result of such breach and without prejudice to any other rights or remedies which such Party may have in law or otherwise (including the right to recovery of damages), have the right to, in respect of the affected Order Form(s):
1. sue for the specific performance of any obligations under the applicable Order Form and these Conditions; or
2. cancel the affected Order Form(s) (or, in the case of a material breach of these Conditions themselves, all Order Forms), which cancellation shall take effect on the giving of the notice of cancellation.
3. Without prejudice to any other right or remedy, AgrigateOne shall be entitled to suspend the rendering of any Services and/or deny access to the Technology under the affected Order Form(s) insofar as possible while the defaulting Party remains in breach of any of its obligations in terms of the applicable Order Form(s) or these Conditions.
4. Any overdue payments under any Order Form shall attract interest at the Prime Rate plus 2 (two) percent per annum, calculated daily and capitalised monthly.

• Disclaimers, limitation of liability and indemnity

1. To the maximum extent permitted under applicable law, the Customer acknowledges and agrees that the Technology is provided by or on behalf of AgrigateOne at the Customer's own risk, save for warranties expressly provided in the applicable Order Form. AgrigateOne makes no representation and gives no undertaking or warranty, express or implied, beyond those expressly stated in the Order Form, including but not limited to warranties that the Technology will be free of any error, fit for a particular purpose, or non-infringing, except where such warranties are expressly provided.
2. To the maximum extent permitted under applicable law, AgrigateOne's maximum liability arising from any cause or claim arising from an Order Form or these Conditions shall be limited to AgrigateOne using its best endeavours to remedy any Defect in the Technology in accordance with the agreed Support Services under the applicable Order Form. The foregoing obligation shall lapse completely if:
1. the terms of the applicable Order Form or these Conditions exclude the obligation to render Support Services in relation to a particular Defect;
2. the Customer is the direct or indirect cause of the Defect;
3. the Defect is caused by the Customer not using the Technology as specified by AgrigateOne from time to time in the Documentation;
4. the Defect is as a result of the Customer premises and equipment not conforming to the Documentation;
5. the Defect is caused by another system or technology not supported by AgrigateOne; or
6. the Customer attempts to remedy the Defect without being authorised to do so in writing by AgrigateOne.
3. AgrigateOne shall not be liable to the Customer for any indirect, consequential, punitive, special or other damages, howsoever arising.
4. The Customer agrees to indemnify, defend, and hold harmless AgrigateOne and all its Affiliates, as well as any of their directors, employees, service providers, agents, and contractors, from and against any and all Adverse Consequences that may arise from a breach of the provisions of the Contract by the Customer or any person acting on its behalf.

• Force majeure

1. For purposes of the Contract, an "Force Majeure Event" shall mean an event:
1. caused by force majeure, vis maior and casus fortuitus or which was otherwise beyond a Party's reasonable control (for instance war, civil unrest, sabotage, pandemics, disaster and failure of systems at a national level); and
2. which could not reasonably have been avoided or overcome;
3. but shall exclude:
1. obligations to make payments that have become due and payable in terms of the Contract prior to the event taking place; or
2. the failure to obtain and maintain any regulatory clearances, approvals, permits and the like necessary for a Party to perform its obligations in terms of the Contract.
2. Notwithstanding anything to the contrary, neither Party shall be liable to the other for any non-performance insofar as such Party can prove the existence of a Force Majeure Event, which relief shall take effect when the Party claiming such relief notifies the other thereof in writing.
3. The Party suffering the Force Majeure Event shall take all reasonable steps to mitigate the adverse effects arising from the Force Majeure Event.
4. If a Force Majeure Event lasts for a period exceeding 90 (ninety) days, AgrigateOne shall be entitled to terminate the affected Order Form(s) on notice in writing to the Customer, which termination shall have the same effect as if the affected Order Form(s) had been terminated due to effluxion of time.

• Informal dispute resolution

1. Save as set out in clause ‎22.4 below, the Parties agree that in the case of a dispute arising between them in relation to any Order Form or these Conditions that cannot be resolved in the normal course of business, a Party may not exercise any right or remedy arising from or relating to such dispute until the Party wanting to do so (the "Claimant") has declared a dispute on written notice to the other Party and requested that they endeavour to resolve the dispute informally (the "Dispute Notice").
2. Upon receipt of a Dispute Notice, the Parties shall be obliged to promptly, but no longer than within 10 (ten) Business Days from service of the Dispute Notice, enter into good faith negotiations in an effort to resolve the dispute so declared. Each Party shall nominate a senior executive with authority to decide over the matter to represent it. A Party may be assisted by legal counsel at the meeting, provided that it must notify the other Party of its intention to do so by written notice as soon as reasonably possible.
3. In order to be effective, a Dispute Notice must at a minimum:
1. include a good faith effort to set out the conduct that the Claimant complains of with adequate detail so as to allow the other Party to engage meaningfully at the dispute resolution meeting; and
2. put forward at least three proposed dates and times (all within 10 (ten) Business Days from service of the Dispute Notice) for a meeting between the senior executives to meet virtually or in person.
4. The Claimant shall not be required to give a Dispute Notice and follow the procedure set out under this heading:
1. to complain of substantially the same conduct (e.g. late payment) more than once in any six-calendar month period; or
2. for purposes of urgent interim relief where the Claimant can show that it would have otherwise likely suffered material adverse consequences due to the urgency of the matter.
5. If the dispute complained of in the Dispute Notice is not settled to the satisfaction of either one of the Parties within a period of 20 (twenty) Business Days from the date of the Dispute Notice (or such later date as the Parties may agree in writing), then either Party may invoke the provisions of clause ‎23.

• Expert determination

1. The Parties may designate certain disputes for exclusive determination by way of a suitably qualified and experienced third-party expert, not acting as an arbitrator (the "Expert Determination"). Accordingly, disputes that have been expressly reserved for Expert Determination shall be dealt with in terms of this clause ‎22.
2. If a Party wants to invoke Expert Determination, it shall do so by demand in writing to the other Party (the "Expert Determination Demand"). Upon receipt of an Expert Determination Demand, the Parties shall engage with each other, acting reasonably and without undue delay, to appoint a mutually agreed, independent, suitably qualified and experienced third-party expert (the "Expert") for purposes of the Expert Determination. If the Parties have not successfully appointed the Expert in writing within 7 (seven) Business Days from the delivery of the Expert Determination Demand (or such longer time period as the Parties may agree in writing), then either Party may request the current chairperson of the Cape Bar society of advocates of the High Court of South Africa (or their nominee) to appoint the Expert, which appointment shall be binding on the Parties.
3. The Expert shall before commencing his/her work undertake to the Parties in writing to keep confidential the dispute and any information submitted to him or her pursuant to the Expert Determination, except if disclosure is essential for application in judicial action, in which case the Expert shall notify the Parties in writing as soon as possible of the intention to make such disclosure, unless such notification itself would be unlawful in terms of a binding ruling of a competent court or regulatory body.
4. The nature of the Expert Determination shall be inquisitorial (as opposed to accusatorial) and the Expert shall be entitled to control and prescribe all aspects of the Expert Determination, including matters of procedure and evidence, setting timelines and calling such information and submission as the Expert may require to make his/her determination.
5. The Parties undertake to give their full and timely co-operation to the Expert to enable him or her to make a timely determination.
6. If, pending the Expert's determination, any amount is payable to appoint the Expert or to make arrangements for suitable facilities (e.g. a venue or transcription services), then the Parties shall pay such amounts in equal shares and the Expert shall make a suitable order as to these costs as part of his/her ruling. If any Party does not pay such amounts on demand then:
1. without the obligation to do so, any other Party may, with full reservation of rights, pay such amount(s) on behalf of the non-paying Party to allow the proceedings to continue; and
2. if the non-paying Party was the Party that served the Expert Determination Demand, any other Party may request that the Expert finally dismisses the Expert Determination Demand with a suitable order as to costs, without considering the merits of the Expert Determination Demand.
7. The Expert shall endeavour to make his/her determination as soon as reasonably possible, but at least within 10 (ten) Business Days after his/her appointment, unless the Expert is of the view in his/her reasonable discretion that the determination requires additional time, in which case the Expert may at any time extend the aforesaid time period on written notice to the Parties, having due regard to the detriment being suffered as a result thereof.
8. The Expert shall issue a written determination, accompanied by an order as to the costs of the proceedings, which decision shall be final and binding on the Parties, except if a competent court rules otherwise (for instance, in the case of manifest error on the part of the Expert).
9. If the Expert becomes incapable or unwilling to give his/her determination, despite 5 (five) Business Days’ written notice by a Party calling on the Expert to do so, then that Expert's appointment may be cancelled by any of the Parties on written notice to the other and the Expert. Upon such termination, the process of appointing an Expert set out above shall be repeated.
10. The Parties agree that an Expert Determination Demand shall be deemed as a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No. 68 of 1969.

• Arbitration

1. Save for (1) any specific dispute that has been expressly reserved for another type of dispute resolution (e.g. expert determination) or (2) at the written election of AgrigateOne, any dispute for the recovery of any moneys owed by the Customer to AgrigateOne, any dispute arising from any Order Form or these Conditions (including whether any part of an Order Form or these Conditions is binding on the Parties), shall be finally resolved by way of arbitration as set out in this clause ‎23.
2. Any Party may call for one or more specified dispute(s) to be so resolved by arbitration by written demand to the other Parties (herein "Arbitration Demand").
3. Arbitration shall be held in English and the proceedings shall be held in Cape Town.
4. Upon receipt of an Arbitration Demand, any Party may request the other in writing to endeavour to conclude a written arbitration agreement (herein "Arbitration Agreement") to set the rules of the arbitration. Unless an Arbitration Agreement is agreed within 5 (five) Business Days from the Arbitration Demand (or such longer period as the Parties may agree in writing), the following shall apply:
1. the arbitration shall be presided over by a single arbitrator;
2. the arbitrator shall be a senior advocate in good standing at the Cape Bar society of advocates of the High Court of South Africa with more than 10 years of relevant experience as nominated by the current chairperson of the said Bar (or his/her nominee);
3. there shall be no right of appeal; and
4. the arbitration shall be subject to the last published version of the expedited rules of the Arbitration Foundation of Southern Africa to the extent they do not conflict with the provisions of this clause ‎23.
5. If, pending the arbitrator's ruling, any amount is payable to appoint the arbitrator or to make arrangements for suitable facilities (e.g. a venue or transcription services), then the Parties shall pay such amounts in equal shares and the arbitrator shall make a suitable order as to these costs as part of his/her ruling. If any Party does not pay such amounts on demand, then:
1. without the obligation to do so, any other Party may, with full reservation of rights, pay such amount(s) on behalf of the non-paying Party to allow the proceedings to continue; and
2. if the Party failing to pay as aforesaid was the Party that served the Arbitration Demand, the other Party may request that the arbitrator finally dismisses the Arbitration Demand with a suitable order as to costs, without considering the merits of the Arbitration Demand.
6. The Parties agree that the Arbitration Demand shall be deemed as a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No. 68 of 1969.
7. Notwithstanding the provisions of this clause ‎23, any Party may approach a court on an urgent basis for interim relief or for such other relief not capable of being obtained by way of arbitration proceedings in general.

• Notices and address for service

1. Each Party hereby chooses as its address for service and receipt of notices (i.e. domicilia citandi et executandi) for purposes under these Conditions and any Order Form, whether in respect of judiciary process or otherwise, that Party’s nominated physical address or email address (hereafter each a "Notice Address") as set out in the applicable Order Form. Accordingly, insofar as these Conditions or any Order Form may prescribe notice periods for the giving of notices, such notice periods shall be complied with upon the giving of notices in compliance with the terms of this clause ‎24.
2. Any notice served on a Notice Address before 17h00 in the recipient's time zone shall:
1. if delivered by hand, be deemed to have been received on the day of delivery; or
2. if sent by email, be deemed to have been received on the date when it is capable of retrieval by the recipient.
3. A Party may by notice in writing to the other change its Notice Address, provided that in respect of its physical address, such address must be in the Republic of South Africa and not a forwarding address. The change of Notice Address shall become effective 7 (seven) Business Days from the giving of such notice.
4. In the event of delivery of a notice to a Notice Address later than 17h00 in the recipient’s time zone, then delivery shall be deemed to have taken place on the next day.
5. A delivery or read receipt generated by a sender's email application (not server) shall constitute face value (i.e. prima facie) proof of the message being capable of retrieval by the recipient. The provisions of this clause ‎24 do not preclude a serving Party from otherwise proving that a notice was in fact duly received by a receiving Party.

• General

1. Assignment. AgrigateOne may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions or any Order Form on written notice to the Customer. The Customer shall not be entitled to transfer any right or obligation arising from these Conditions or any Order Form to another (including transfer by way of cession, assignment, delegation, sale, merger, operation of law or otherwise), without the prior written consent of AgrigateOne, which consent shall not be unreasonably withheld.
2. Applicable law and jurisdiction. The Contract shall be governed by and construed and interpreted in accordance with the laws of the Republic of South Africa. Unless and to the extent that the Contract prescribes alternative dispute resolution mechanisms, the Parties agree that the High Court of South Africa, Western Cape Division, shall have exclusive jurisdiction to hear any disputes that may arise from the Contract.
3. Independent advice. Each of the Parties acknowledges that it has been free to secure independent legal advice and that it has either taken such independent legal advice or dispensed with the necessity of doing so at its own risk.
4. Binding on successors-in-title. The Contract shall be binding on and enforceable against any successor-in-title or other legal representatives of the Parties as fully and effectually as if they had signed the Contract in the first instance.
5. Independent contractors. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. The Contract shall accordingly not create a partnership or joint venture, nor constitute any Party as the other’s agent, partner, employee or representative.
6. No representation. No Party shall be entitled to represent or act for or in the name of another Party, unless and only to the extent expressly provided otherwise in the Contract.
7. Third-party rights. Unless expressly otherwise agreed herein, the Contract is not intended to be for the benefit of (and shall not be enforceable by) any person other than the Parties hereto.
8. Whole agreement. These Conditions, together with any Order Form(s) executed by the Parties, constitute the whole agreement between the Parties as to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties or the like not recorded in these Conditions or in the applicable Order Form(s).
9. Variation. No variation of these Conditions or any Order Form shall be effective unless it is in writing and signed by the parties (or their authorised representatives). The provisions of this clause shall not prevent the amendment of any document incorporated in these Conditions by reference after the Commencement Date, if and to the extent that the right to do so has been expressly reserved in these Conditions or the applicable Order Form.
10. Relaxation. No failure or delay on the part of any Party to enforce its rights shall in any circumstances be construed as a consent, election, limitation or waiver of rights by such Party.
11. Cost of legal services. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re-drafting, entering into and implementation of the Contract. Should any Party instruct attorneys to take any steps to enforce any rights in terms of the Contract arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
12. Authority to sign. The person signing these Conditions or any Order Form on behalf of any one of the Parties warrants and represents as a separate, personal obligation that he/she has the authority to do so and that his/her signature was applied using either an original, handwritten signature or legally compliant and binding electronic signature to the extent and in the manner permitted by these Conditions and the applicable Order Form. The signature of witnesses is not a precondition to the validity of these Conditions or any Order Form.

• Electronic signature

1. Each Order Form will be signed by the signatories hereto by way of electronic signatures.
2. As a personal and several obligation, each signatory irrevocably undertakes in favour of the Parties to promptly execute a confirmatory copy of the Contract by way of an originally-applied wet ink signature if called upon to do so by any of the Parties. The signature date of the confirmatory copy of the applicable Order Form shall be deemed to be the same as that of the originally signed text. Should any signatory fail to promptly comply with this obligation within 10 (ten) Business Days of being called upon to do so, such person hereby irrevocably and in rem suam (i.e. having a material and vested interest in the matter) authorises any other Party to sign on their behalf as duly authorised agent.
   

ONESWITCH LIMITED

TRADE OPTIMISATION MODULE TERMS AND CONDITIONS

These terms and conditions govern the provision of the OneSwitch Trade Optimisation Module by OneSwitch Limited (Registration Number 15502630) ("OneSwitch") to the buyer ("Buyer") and the seller ("Seller") identified in the applicable Order Form

1. Definitions

1. In the Contract, the following terms (as capitalised), shall have the meanings assigned below:
1. "Affiliate" means in relation to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with that Party from time to time.
2. "AgrigateOne Cloud Platform" means the fresh produce management and tracking cloud platform as made available by an Affiliate of OneSwitch or its successor in title from time to time.
3. "Applicable Laws" means all applicable laws, statutes, regulations and codes from time to time in force.
4. "Business Day" means any day which is not a Saturday, Sunday or official public holiday in England when banks in London are open for business.
5. "Commencement Date" means the date the Contract is entered into as stated in the Order Form or, if not stated, the Commencement Date.
6. "Conditions" means these terms and conditions set out in clause ‎‎‎‎1 (Definitions) to clause ‎‎‎‎21 (General).
7. "Contract" means this tripartite master agreement between OneSwitch, the Buyer and the Seller comprising these Conditions and any Order Forms executed hereunder, which governs: (a) the provision of the Trade Optimisation Module by OneSwitch to the Buyer and the Seller; and (b) the framework for bilateral Orders between the Buyer and the Seller for the sale and purchase of Products, with OneSwitch facilitating such transactions but not being a party to the Orders themselves.
8. "Controller" has the meaning given to it in section 6, Data Protection Act 2018.
9. "Currency" means the currency in which the Sale Price must be paid, as agreed in an Order Form.

• "Data Protection Laws" means all applicable laws and regulations relating to the processing, protection, or privacy of the Personal Data, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction. This includes, but is not limited to:

1. to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of Personal Data;
2. to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Parties are subject, which relates to the protection of Personal Data; and
3. to the extent that it applies, the Protection of Personal Information Act 4 of 2013.

• "Data Subject" means an individual who is the subject of the Personal Data and to whom or about whom the Personal Data relates or identifies, directly or indirectly.

1. "Delivery Date" means the date and time of actual delivery of the Products to the Delivery Place.
2. "Delivery Place" means the physical point at which delivery will take place in accordance with the relevant Incoterms agreed to by the Parties in an Order.
3. "Delivery Window" means the period within which the Products must delivered at the Delivery Place in terms of an Order.
4. "EU GDPR" means the General Data Protection Regulation ((EU) 2016/679).
5. "Expert" has the meaning assigned to the term in ‎17 (Expert Determination).
6. "Expert Determination" has the meaning assigned to the term in ‎17 (Expert Determination).
7. "Incoterms" means the Incoterms 2020, ICC Rules for the Use of Domestic and International Trade Terms, published by the International Chamber of Commerce or as may be updated from time to time.
8. "Initial Term" means the initial term of the Contract as set out in the Order Form or, if not specified, the period from the Commencement Date until terminated in accordance with the Contract.
9. "Intellectual Property Rights" means copyright, database rights, patents, trade marks, registered designs, unregistered design rights, domain names, confidential information, business processes, trade secrets, know-how, goodwill and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
10. "Order" means a binding order in a form acceptable to OneSwitch concluded between the Buyer and the Seller for sale of the Products by the Seller to the Buyer via the Trade Optimisation Module.
11. "Order Effective Date" means the effective date of each Order Form, as set in each Order.

• "Order Form" means each order form entered into between the Buyer, the Seller and OneSwitch incorporating the terms of the Contract which shall contain, without limitation, a description of the Products, the Sale Price, Delivery Place, Delivery Window, Payment Terms and other commercial terms.

1. "Payment Terms" means terms for the payment of the Sale Price as set out in an Order.

• "Personal Data" means any information OneSwitch processes for the Buyer or the Seller that:

1. identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in OneSwitch's possession or control or that OneSwitch is likely to have access to; or

1. the relevant Data Protection Laws otherwise define as protected personal data.
2. "Platform Fee" means the fee payable by the Seller to OneSwitch for the use of the Trade Optimisation Module as calculated by OneSwitch, being the percentage amount specified in each Order applied to the total amount of the Sale Price and any other amounts payable in relation to that Order, exclusive of any downward adjustment in relation to the Products set out in the Order for whatever cause, as well as excluding any taxes and other levies and expenses. An indicative calculation of the Platform Fee shall be included in each Order Form.

• "Processing", "processes", and "process" means any activity that involves the use of Personal Data, or as the relevant Data Protection Laws may otherwise define the terms processing, processes, or process. It includes obtaining, recording, or holding the data, or carrying out any operation or set of operations on the data including organizing, amending, retrieving, using, disclosing, erasing, or destroying it. Processing also includes transferring Personal Data to third parties.

• "Processor" means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Controller.

1. "Products" means the agricultural goods sold by the Seller to the Buyer in terms of an Order.
2. "Product Quality" means the size count and class of the Products, as specified in an Order.
3. "Renewal Term" means each successive period of 12 months following the Initial Term, unless otherwise specified in the Order Form or the Contract is terminated in accordance with its terms.
4. "Sale Price" means the price payable by the Buyer to the Seller for the purchase of the Products, as specified in an Order.
5. "Term" means the Initial Term together with any subsequent Renewal Term.
6. "Trade Optimisation Module" means the Trade Optimisation module forming part of the OneSwitch product located on the AgrigateOne Cloud Platform.
7. "Trade Optimisation Module Terms of Use" means the terms of use applicable to the Trade Optimisation Module which are available at on the Trade Optimisation Module as amended by OneSwitch from time to time.
8. "UK GDPR" has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

1. Terms defined in any part of the Contract shall have the same meaning throughout the Contract.

1. Commencement and term
1. The Contract shall commence on the Commencement Date and shall continue for the Initial Term and unless otherwise terminated in accordance with clause ‎14 (Termination), the Contract shall be automatically renewed for successive Renewal Terms, unless any Party gives to the other Parties written notice of termination at least 90 days before the end of the Initial Term or any Renewal Term in which case the Contract shall terminate upon the expiry of the applicable Initial Term or Renewal Term.
2. Each Order Form shall be deemed to incorporate the Conditions. In the event of any conflict between the Conditions and the terms of any Order Form, the Conditions shall prevail unless the Order Form expressly provides otherwise.
3. As between Order Forms, later Order Forms shall take precedence over earlier Order Forms in respect of the same subject matter, except if the relevant Order Form expressly provides otherwise.
2. Orders
1. During the Term of the Contract, the Buyer and Seller may execute Orders via the Trade Optimisation Module. Each Order shall constitute a separate bilateral contract between the Buyer and the Seller (to which OneSwitch is not a party) which incorporates and is governed by these Conditions. Orders shall become binding upon acceptance by both the Buyer and the Seller in accordance with the procedures established in the Trade Optimisation Module.
2. The Parties acknowledge that the Contract constitutes a tripartite master agreement establishing the framework within which the Buyer and the Seller may execute bilateral Orders for the sale and purchase of Products. OneSwitch provides the Trade Optimisation Module to facilitate such Orders but is not a party to the Orders themselves. The Buyer and the Seller agree that all Orders under this Contract shall be exclusively originated, executed, and managed via the Trade Optimisation Module, with payments facilitated by OneSwitch as agent for the Seller. Accordingly, each of the Buyer and the Seller shall:
1. comply with the Trade Optimisation Module Terms of Use; and
2. at their cost, maintain the necessary subscriptions to the AgrigateOne Cloud Platform and the Trade Optimisation Module at the prevailing rates and terms thereof to be able to access the Trade Optimisation Module.
3. The Parties acknowledge and agree that:
1. signature of the initial Order Form constitutes their agreement to be bound by all subsequent Orders executed electronically via the Trade Optimisation Module without requiring separate signature of an Order Form for each transaction;
2. each Order automatically generated by the platform shall contain the commercial terms of that specific transaction;
3. Platform-generated notifications and confirmations shall constitute sufficient documentary evidence of each Order;
4. electronic acceptance through the Trade Optimisation Module has the same legal effect as a signed written agreement; and
5. no separate Order Form signature is required for individual transactions.
4. The Parties acknowledge that OneSwitch operates a trading network model whereby:
1. each Buyer and Seller signs a single Network Participation Agreement (the initial Order Form) to join the OneSwitch network;
2. once onboarded, Buyers and Sellers may trade with multiple counterparties introduced via the platform without signing separate agreements for each new trading relationship; and
3. all trades conducted through the platform are governed by these Conditions regardless of the counterparty.
5. By signing the initial Order Form:
1. a Buyer agrees to be bound by these Conditions for all purchases from any Seller on the OneSwitch network;
2. a Seller agrees to be bound by these Conditions for all sales to any Buyer on the OneSwitch network; and
3. each Party consents to OneSwitch facilitating introductions and transactions with other network participants.
6. Individual Orders between specific Buyers and Sellers shall be executed electronically via the platform and shall incorporate these Conditions by reference without requiring separate signature.
7. Any Party may terminate the Contract upon 90 calendar days prior written notice to the other Parties, provided that termination of the Contract shall not affect binding Orders at the effective date of termination, which shall continue to be executed in accordance with the terms of the Contract and the relevant Order.
8. OneSwitch shall have the right to update the Trade Optimisation Module Terms of Use from time to time, with the revised text taking effect on the date of publication thereof. The Seller and Buyer shall keep themselves apprised of the Trade Optimisation Module Terms of Use by regularly checking for updates.
9. In the event of any conflict between the terms of the Contract and the terms of any Order, the terms of the Contract shall prevail.
3. Sale and purchase of Products
1. In respect of each Order executed by the Buyer, the Seller, and OneSwitch in accordance with the Contract:
1. The Seller agrees to sell to the Buyer, and the Buyer agrees to purchase from the Seller, the Products for the Sale Price with effect from the Order Effective Date. The transaction shall be facilitated by OneSwitch via the Trade Optimisation Module in accordance with these Conditions, with OneSwitch acting as payment agent for the Seller but not as a party to the sale and purchase contract between the Buyer and the Seller.
2. The Buyer shall pay the full amount of the Sale Price in the Currency into OneSwitch's nominated bank account strictly in accordance with the agreed Payment Terms, without deduction, set-off or demand.
3. The Seller hereby irrevocably appoints OneSwitch as its agent to receive the Sale Price in full on its behalf into the bank account designated by OneSwitch by written notice from time to time (the "OneSwitch Bank Account"). This appointment shall continue for the duration of the Contract and in respect of all Orders executed hereunder unless terminated in accordance with the Contract.
4. In order to limit the risk of payment related fraud, the Buyer agrees to independently verify via its bankers that the details of the nominated account in fact belongs to OneSwitch before attempting to make any payment.
5. The obligation to pay the Sale Price shall be fully and irrevocably settled by the Buyer upon OneSwitch Bank Account being credited with the Sale Price, which shall receive and hold the Sale Price on trust on behalf of the Seller.
6. OneSwitch shall deduct the Platform Fee from the Sale Price in accordance with the provisions of clause ‎9 and shall pay the Sale Price less the Platform Fee to the Seller's designated bank account within three (3) Business Days (or such other period as agreed in writing between OneSwitch and the Seller) of receipt of the Sale Price in cleared funds from the Buyer.
4. Delivery, ownership and risk
1. The Seller shall procure the delivery of the Products at its cost to the Delivery Place within the Delivery Window.
2. The Seller warrants that the Products shall be of the specified Product Quality when delivered to the Delivery Place.
3. The Buyer (or its authorised agent) shall inspect the Products on the Delivery Date at the Delivery Place. Unless the Buyer disputes that the Products are of the agreed Product Quality within 48 hours from the time of the Delivery Date, the Products shall be irrevocably deemed to have complied with the agreed Product Quality and the Buyer shall be deemed to have accepted delivery.
4. If the Buyer decides to make use of an authorised agent, the conduct of such agent shall irrevocably bind the Buyer. The Buyer shall not under any circumstances be entitled to dispute the mandate of the agent or any errors or omissions made by it in the performance of its duties.
5. The ownership of the Products shall pass to the Buyer on the actual or deemed acceptance of the Products pursuant to clause ‎‎5.3, provided that if the Parties have not agreed on extended payment terms in the relevant Order, the Sale Price must have been paid in full, failing which ownership shall remain reserved to the Seller.
6. All risk in the Products shall pass to the Buyer upon actual or deemed acceptance of delivery of the Products at the Delivery Place.
5. Product Quality disputes

• Informal resolution of issues with Product Quality

1. If the Buyer, acting in good faith, is of the opinion that all or some of the Products are not of the agreed the Product Quality, it may informally request an equitable price adjustment to account for the issue. While the Seller is under no obligation to consider or accept such a proposal, the Parties shall be free to come to an agreement in this regard (herein a "Price Adjustment Agreement"), provided that:

1. the Price Adjustment Agreement is made in writing and signed by both the Seller and the Buyer (or their authorised representatives); and
2. OneSwitch is promptly notified of the change and provided with a copy of the Price Adjustment Agreement.

• Formal resolution of issues with Product Quality

1. If the Buyer wants to formally dispute that the Products are of the agreed Product Quality, it must:

1. inform the Seller within 48 hours of the time of the Delivery Date; and
2. immediately thereafter confirm such dispute by email notice to the Seller and OneSwitch (herein a "Dispute Notice").

1. In order for a Dispute Notice to be valid, the written notice must contain sufficient detail so that it can be independently verified at a later stage, but must at a minimum specify:

1. the quantity of the affected Products;
2. the stock-keeping unit of each affected Products, where reasonably possible;
3. a description of the defect(s); and
4. photographs of the affected Products clearly depicting the defect(s).

1. Failure to serve a valid Dispute Notice shall result in the Products being irrevocably deemed as compliant with the Product Quality. The Buyer waives any right or entitlement to contest the Product Quality in these circumstances.
2. If the Buyer has served a valid Dispute Notice and the Parties cannot resolve the dispute informally, the dispute shall be referred for resolution by way of Expert Determination. If the Expert finds that the Buyer incorrectly or unreasonably refused to accept delivery of the Products, the Buyer shall be liable to the Seller for the damages suffered by it, which shall be payable on demand.

1. Trade Optimisation Module
1. OneSwitch warrants that its obligations under the Contract will be performed in accordance with reasonable care and skill and in accordance with all Applicable Laws. This warranty is in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose.
2. OneSwitch does not warrant that:
1. the Buyer's or the Seller's use of the Trade Optimisation Module will be uninterrupted or error-free;
2. the Trade Optimisation Module and/or the information obtained by the Buyer or the Seller through the Trade Optimisation Module will meet the Buyer's or the Seller's requirements; or
3. the Trade Optimisation Module will be free from viruses.
3. OneSwitch is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Buyer and the Seller acknowledge that the Trade Optimisation Module may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
2. Data protection
1. Each Party shall comply with all the applicable requirements of the Data Protection Laws. This clause ‎8 is in addition to, and does not relieve, remove or replace a Party's obligations under the Data Protection Laws.
2. The Parties acknowledge that for the purposes of the Data Protection Laws, the Buyer and the Seller are each independent Controllers and OneSwitch is the Processor of any Personal Data provided to OneSwitch by the Buyer or the Seller (as applicable) pursuant to the Contract or any Order. ‎Appendix 1 sets out the scope, nature and purpose of processing by OneSwitch, the duration of the processing and the types of Personal Data and categories of Data Subject.
3. Without prejudice to the generality of clause ‎‎8.1, the Buyer and the Seller will each ensure that they have all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to OneSwitch for the duration and purposes of the Contract and any Orders executed thereunder.
4. Without prejudice to the generality of clause ‎‎8.1, OneSwitch shall, in relation to any Personal Data processed in connection with the performance of its obligations under the Contract or any Order:
1. process that Personal Data only on the documented written instructions of the Buyer or the Seller (as applicable) unless OneSwitch is required by Applicable Laws to otherwise process that Personal Data. Where OneSwitch is relying on Applicable Laws as the basis for processing Personal Data, OneSwitch shall promptly notify the Buyer or the Seller (as applicable) of this before performing the processing required by the Applicable Laws unless the Applicable Laws prohibit OneSwitch from so notifying the Buyer or the Seller (as applicable);
2. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
4. not transfer any Personal Data outside of the UK or the EEA (as applicable) unless the prior written consent of the Buyer or the Seller (as applicable) has been obtained and the following conditions are fulfilled:

1. the Buyer or the Seller (as applicable) or OneSwitch has provided appropriate safeguards in relation to the transfer;
2. the Data Subject has enforceable rights and effective legal remedies;
3. OneSwitch complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred; and
4. OneSwitch complies with reasonable instructions notified to it in advance by the Buyer or the Seller (as applicable) with respect to the processing of the Personal Data;

1. assist the Buyer and/or the Seller, at the Buyer or Seller's (as applicable) cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
2. notify the Buyer and/or the Seller (as applicable) without undue delay on becoming aware of a breach of security leading to the accidental, unauthorised or unlawful destruction, loss, alteration, disclosure of, or access to, the Personal Data;
3. at the written direction of the Buyer or the Seller (as applicable), delete or return Personal Data and copies thereof to the Buyer or the Seller (as applicable) on termination of the Contract unless required by Applicable Laws to store the Personal Data; and
4. maintain complete and accurate records and information to demonstrate its compliance with this clause ‎‎8 and allow for audits by the Buyer or the Seller or the Buyer's or the Seller's designated auditor and immediately inform the Buyer or the Seller (as applicable) if, in the opinion of OneSwitch, an instruction infringes the Data Protection Laws.
5. The Buyer and the Seller each provides its prior, general authorisation for OneSwitch to appoint sub-processors to process the Personal Data, provided that OneSwitch:
1. shall ensure that the terms on which it appoints such processors comply with Data Protection Laws, and are consistent with the obligations imposed on OneSwitch in this clause ‎‎‎8;
2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of OneSwitch; and
3. shall inform the Buyer and the Seller of any intended changes concerning the addition or replacement of the processors, thereby giving the Buyer and the Seller the opportunity to object to such changes provided that if the Buyer or the Seller objects to the changes and cannot demonstrate, to OneSwitch's reasonable satisfaction, that the objection is due to an actual or likely breach of the Data Protection Laws, the Buyer or the Seller (as applicable) shall indemnify OneSwitch for any losses, damages, costs (including legal fees) and expenses suffered by OneSwitch in accommodating the objection.

1. Platform Fee
1. In return for the services rendered by OneSwitch in relation to the Contract, the Seller shall pay OneSwitch the Platform Fee on the Delivery Date as detailed in and on the basis set out in the Order Form.
2. OneSwitch's calculation of the Platform Fee shall be binding on the Seller, except in the case of manifest error.
3. The Seller hereby irrevocably authorises OneSwitch to settle the Platform Fee due from the Sale Price received on trust from the Buyer.
4. The Seller agrees that the Platform Fee shall become due and payable on the Delivery Date and remain so irrespective of the termination or failed implementation of the Contract for any reason. The amount of the Platform Fee shall not be reduced if the Parties subsequently agree to a reduction in the Sale Price.
5. The Platform Fee shall be payable by the Seller in addition to any other prevailing fees or charges that may be payable by the Buyer and Seller in relation to the Trade Optimisation Module.
2. Non-circumvention and restraint of trade
1. The Buyer and Seller agree not to circumvent OneSwitch in the performance of the Contract. Without limiting the generality of the aforegoing undertaking, the Buyer and Seller shall not do anything, or refrain from doing anything, directly or indirectly, that prejudices OneSwitch's entitlement to and receipt of the full Platform Fee.
2. The Seller further agrees to exclusively use OneSwitch for any sale of perishable goods to the Buyer during the term of the Contract and for a period of 18 months thereafter. The Seller shall not do anything, or refrain from doing anything, directly or indirectly, that breaches the aforegoing undertaking.
3. OneSwitch shall for each sale which breaches the undertaking in clause ‎10.2 be entitled to elect by written notice to recover from the Seller on demand, as a genuine pre-estimate of loss, an amount equal to the percentage used to calculate the Platform Fee as set out in the applicable Order Form of the transaction value of any such sales provided that where OneSwitch has not been provided with accurate data to calculate the Platform Fee that would have been payable to OneSwitch, OneSwitch shall for each sale which breaches the undertaking in clause ‎10.2 be entitled to recover an amount equal to the average Platform Fee payable to OneSwitch in respect of Orders generated during the previous twelve (12) months, or if no such Orders exist, a reasonable estimate of the Platform Fee that would have been payable.
3. Confidential Information
1. By virtue of the Contract, the Parties may have access to confidential and proprietary information, know-how and trade secrets of the other Parties and their respective Affiliates (hereafter "Confidential Information"), which shall include (without limitation) or purposes hereof:
1. the terms of the Contract and any disputes arising from the Contract;
2. information which has been supplied by a Party to another Party with an indication that it is confidential, whether marked as such or not; and
3. other matters which relate to the business of any Party and in respect of which information is not readily available in the ordinary course of business to a competitor.
2. Each Party undertakes that it shall for the term of the Contract and for a period of 3 years thereafter, maintain the confidentiality of the Confidential Information that may be disclosed between them and specifically not to disclose such information to any third party, except insofar as permitted in terms of the Contract.
3. The obligations of confidentiality under clause ‎11.2 shall not apply to:
1. disclosure on need-to-know basis, strictly necessarily for the performance of that Party's obligations in accordance with the Contract;
2. information which is independently developed by or acquired from a third party;
3. the disclosure of information to the extent required to be disclosed by Applicable Laws, binding order of competent authority or otherwise as essential for application in judicial action;
4. the disclosure in confidence to a Party's professional advisors of information reasonably required to be disclosed for a purpose reasonably incidental to the Contract; and
5. information which comes within the public domain otherwise than as a result of a breach of this clause ‎11.
4. The Party seeking to rely on an exclusion in clause ‎11.3 shall bear the onus of proof that such exclusion applies to the particular facts or circumstances.
5. The Party making a disclosure to a third party permitted by clause ‎11.3 shall procure that such third party complies with the obligations of this clause ‎11.
4. Intellectual Property Rights
1. The Buyer and the Seller acknowledge and agree that OneSwitch and its Affiliates and/or its or their licensors own all Intellectual Property Rights in the AgrigateOne Cloud Platform and the Trade Optimisation Module. Except as expressly stated herein:
1. the Contract does not grant the Buyer or the Seller any Intellectual Property Rights or any other rights or licences in respect of the AgrigateOne Cloud Platform or the Trade Optimisation Module; and
2. nothing in the Contract shall cause the transfer of any Intellectual Property Rights owned by any Party to the other Parties.
2. OneSwitch shall be entitled to reference the Seller and Buyer as parties that have made used of its services provided that OneSwitch shall not disclose the specific commercial terms of the Contract.
5. General warranties
1. Each of the Buyer and the Seller warrants to OneSwitch, and OneSwitch warrants to each of the Buyer and the Seller, that:
1. it has the legal capacity and has taken all necessary corporate action required to empower and authorise it to enter into the Contract;
2. it has obtained and will maintain all the required regulatory consents, approvals, licenses and the like to enter into and to give effect to the Contract;
3. the Contract constitutes an agreement valid and binding on it and enforceable against it in accordance with its terms; and
4. the execution of the Contract and the performance of its obligations hereunder does not and shall not:

1. contravene any Applicable Laws to which that Party is subject;
2. contravene any provision of that Party's constitutional documents; or
3. conflict with or constitute a breach of any of the provisions of any other agreement, obligation, restriction or undertaking which is binding on it.

1. Termination
1. In this clause:
1. "Insolvency Event" means, in relation to a Party, when that Party becomes insolvent, is unable pay its debts as they fall due or its normal legal capacity is impaired in any manner (by resolution, court order or otherwise), which shall include sequestration, liquidation (either provisionally or finally), business rescue or any occurrence with analogous effect and shall specifically include the following:

1. the giving of any notice to one or more creditors that the Party cannot pay its debts or any attempt to make an arrangement with any of its creditors for a release from its debts or part thereof;
2. the removal of any of its property with the intent to prejudice creditors or to prefer one creditor above another; and
3. the disposition of any of its property which has or would have the effect of prejudicing its creditors or of preferring one creditor above another.

• "Event of Default" means if a Party (herein the "Defaulting Party"):

1. breaches any provision of the Contract and remains in breach for 7 (seven) Business Days after the non-defaulting Party (herein "Non-Defaulting Party") has given written notice to rectify that breach; or
2. commits a material breach of any term or warranty set out in the Contract that is not capable of remedy; or
3. fails to prevent an Insolvency Event from occurring; or
4. repudiates the Contract by acting in a manner that reasonably evidences a general lack of capacity or intent not to comply with the terms of the Contract.

1. In the event that the Defaulting Party commits an Event of Default, the Non-Defaulting Party shall as a result of such breach or repudiation (as the case may be) and without prejudice to any other rights or remedies which such Party may have in law or otherwise (including the right to recovery of damages), have the right to:
1. sue for the specific performance of any obligations under the Contract; or
2. terminate the Contract, which termination shall take effect on the giving of the notice of termination.
2. Any overdue payments shall bear interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause ‎‎14.3 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
3. The Platform Fee shall remain due and payable by the Seller to OneSwitch despite the termination of the Contract for any reason.

1. Exclusion of liability and indemnity in respect of OneSwitch
1. Except as expressly and specifically provided in the Contract:
1. the Buyer and the Seller assume sole responsibility for results obtained from the use of the Trade Optimisation Module by the Buyer or the Seller (as applicable), and for conclusions drawn from such use. OneSwitch shall have no liability for any damage caused by errors or omissions in any information or instructions provided to OneSwitch by the Buyer or the Seller in connection with the performance of OneSwitch's obligations under the Contract, or any actions taken by OneSwitch at the Buyer's or the Seller's direction;
2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by Applicable Laws, excluded from the Contract; and
3. the Trade Optimisation Module is provided to the Buyer and the Seller on an "as is" basis.
2. Nothing in the Contract excludes or limits the liability of any Party for death or personal injury caused by negligence or for any matter in relation to which liability cannot by law be excluded or limited.
3. Subject to clause ‎15.1 and ‎15.2, OneSwitch's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the Contract shall not exceed an amount equal to the average total Platform Fee paid to OneSwitch under the Contract in the twelve (12) months preceding the event giving rise to the claim.
4. The Seller and the Buyer hereby each indemnify OneSwitch and its Affiliates and licensors, from any Adverse Consequences that may arise from the Contract.
2. Force majeure
1. For purposes of the Contract, a "Force Majeure Event" shall mean any circumstance not within a Party's reasonable control, but shall exclude:
1. obligations to make payments that have become due and payable under the Contract prior to the event taking place; or
2. the failure to obtain and maintain any regulatory clearances, approvals, permits and the like necessary for a Party to perform its obligations under the Contract.
2. Notwithstanding anything to the contrary, neither Party shall be liable to the other for any non-performance insofar as such Party can prove the existence of a Force Majeure Event, which relief shall take effect when the Party claiming such relief notifies the other thereof in writing.
3. The Party suffering the Force Majeure Event shall take all reasonable steps to mitigate the adverse effects arising from the Force Majeure Event.
4. In the event that the Force Majeure Event cannot or will not be resolved within 10 (ten) Business Days, then the Parties will within a further 10 (ten) Business Days negotiate with one another in good faith and acting reasonably to agree in writing on a commercially equivalent alternative provision that removes the Force Majeure Event, failing which:
1. if the provision affected by the Force Majeure Event is material and/or required for the Contract to be lawful, the Contract may be terminated on notice in writing by the Party not suffering the Force Majeure Event; or
2. if not, then the affected provision shall be deemed severed from the Contract and the remainder of the Contract shall remain binding on the Parties.
5. A dispute as to whether a provision is material or not shall be referred for binding determination by a suitably qualified and experienced independent expert (not acting as arbitrator) if it cannot be resolved within 10 (ten) calendar days, which expert shall be appointed by agreement in writing between the Parties.
3. Expert Determination
1. The Parties may designate certain disputes for exclusive determination by way of a suitably qualified and experienced third-party expert, not acting as an arbitrator (herein "Expert Determination"). Accordingly, disputes that have been expressly reserved for Expert Determination, shall be dealt with in accordance with this clause ‎17.
2. A Party may invoke Expert Determination by notifying the other Parties in writing (herein "Expert Determination Demand"). Upon receipt of an Expert Determination Demand, the Parties shall engage with each other, acting reasonably and without undue delay, to appoint a mutually agreed, independent, suitably qualified and experienced third-party expert (herein "Expert") for purposes of the Expert Determination. If the Parties have not successfully appointed the Expert in writing within 7 (seven) Business Days from the delivery of the Expert Determination Demand (or such longer time period as the Parties may agree in writing), then either Party may request the London Court of International Arbitration (or its successor in title) to appoint the Expert in accordance with its prevailing terms, which appointment shall be binding on the Parties.
3. The nature of the Expert Determination shall act as an expert and not as an arbitrator and the Expert shall be entitled to control and prescribe all aspects of the Expert Determination, including matters of procedure and evidence, setting timelines and calling such information and submission as the Expert may require to make his/her determination.
4. The Parties undertake to give their full and timely co-operation to the Expert to enable him or her to make a timely determination.
5. If, pending the Expert's determination, any amount is payable to appoint the Expert or to make arrangements for suitable facilities (e.g. a venue or transcription services), then the Parties shall pay such amounts in equal shares and the Expert shall make a suitable order as to these costs as part of his/her ruling. If any Party does not pay such amounts on demand then:
1. without the obligation to do so, any other Party may, with full reservation of rights, pay such amount(s) on behalf of the non-paying Party to allow the proceedings to continue; and
2. if the non-paying Party was the Party that served the Expert Determination Demand, any other Party may request that the Expert finally dismisses the Expert Determination Demand with a suitable order as to costs, without considering the merits of the Expert Determination Demand.
6. The Expert shall endeavour to make his/her determination as soon as reasonably possible, but at least within 10 (ten) Business Days after his/her appointment, unless the Expert is of the view in his/her reasonable discretion that the determination requires additional time, in which case the Expert may at any time extend the aforesaid time period on written notice to the Parties, having due regard to the detriment being suffered as a result thereof.
7. The Expert shall issue a written determination, accompanied by an order as to the costs of the proceedings, which decision shall be final and binding on the Parties, except if a competent court rules otherwise (for instance, in the case of manifest error on the part of the Expert).
8. If the Expert becomes incapable or unwilling to give his/her determination, despite 5 (five) Business Days’ written notice by a Party calling on the Expert to do so, then that Expert's appointment may be cancelled by any of the Parties on written notice to the other and the Expert. Upon such termination, the process of appointing an Expert set out above shall be repeated.
4. Arbitration
1. Save for any specific dispute that has been expressly reserved for another type of dispute resolution (e.g. Expert Determination), any dispute arising from the Contract (including whether any part of the Contract is binding on the Parties), shall be finally resolved by way of arbitration as set out in this clause ‎18.
2. Any Party may call for one or more specified dispute(s) to be so resolved by arbitration by written demand to the other Parties (herein "Arbitration Demand").
3. Arbitration shall be held in English and the proceedings shall be held in London.
4. Upon receipt of an Arbitration Demand, any Party may request the other in writing to endeavour to conclude a written arbitration agreement (herein "Arbitration Agreement") to set the rules of the arbitration. Unless an Arbitration Agreement is agreed within 5 (five) Business Days from the Arbitration Demand (or such longer period as the Parties may agree in writing), the following shall apply:
1. the arbitration shall be presided over by a single arbitrator;
2. there shall be no right of appeal; and
3. the arbitration shall be subject to the last published version of the rules of the London Court of International Arbitration to the extent they do not conflict with the provisions of this clause ‎18.
5. If, pending the arbitrator's ruling, any amount is payable to appoint the arbitrator or to make arrangements for suitable facilities (e.g. a venue or transcription services), then the Parties shall pay such amounts in equal shares and the arbitrator shall make a suitable order as to these costs as part of his/her ruling. If any Party does not pay such amounts on demand, then:
1. without the obligation to do so, any other Party may, with full reservation of rights, pay such amount(s) on behalf of the non-paying Party to allow the proceedings to continue; and
2. if the Party failing to pay as aforesaid was the Party that served the Arbitration Demand, the other Party may request that the arbitrator finally dismisses the Arbitration Demand with a suitable order as to costs, without considering the merits of the Arbitration Demand.
6. Notwithstanding the provisions of this clause ‎18, any Party may approach a court on an urgent basis for interim relief or for such other relief not capable of being obtained by way of arbitration proceedings in general.
5. Notices

1. Any notice given to a Party under or in connection with the Contract shall be in writing and shall be:
1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
2. sent by email to the address set out for that Party in the Cover Page.
2. Any notice shall be deemed to have been received:
1. if delivered by hand, at the time the notice is left at the proper address;
2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
3. if sent by email, at the time of transmission, or, if this time falls outside 9am to 5pm on a Business Day in the place of receipt, at 9am on the next Business Day.
3. 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.

1. Interpretation

1. Any reference to a statute or other regulatory enactment is to the provisions thereof as at the Commencement Date and as amended or re-enacted from time to time.
2. Unless the context shows otherwise, a clause which includes a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
3. Termination of the Contract shall not affect those provisions which expressly provide that they will continue to operate after such termination or expiry, or those provisions which of necessity must continue to have effect after such termination or expiry, even where those clauses do not expressly provide for this.
4. In the event that any right or remedy is expressly stated to be available to any of the Parties in particular circumstances, such right or remedy shall be available without prejudice to or limitation of any other right or remedy that may be available to that Party in such circumstances, unless the contrary is expressly stated.

1. General
1. No assignment. Subject to the terms of any applicable Order Form, no Party shall be entitled to transfer any right or obligation arising from the Contract to another (including transfer by way of cession, assignment, delegation, sale, merger, operation of law or otherwise), without the prior written consent of the other Parties hereto, which consent shall not be unreasonably withheld or delayed.
2. Applicable law and jurisdiction. The Contract shall be governed by and construed and interpreted in accordance with the laws of England and Wales.
3. Independent advice. Each of the Parties acknowledges that it has been free to secure independent legal advice and that it has either taken such independent legal advice or dispensed with the necessity of doing so at its own risk.
4. Binding on successors-in-title. The Contract shall be binding on and enforceable against any successor-in-title or other legal representatives of the Parties as fully and effectually as if they had signed the Contract in the first instance.
5. Independent contractors. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. The Contract shall accordingly not create a partnership or joint venture, nor constitute any Party as the other’s agent, partner, employee or representative.
6. No representation. No Party shall be entitled to represent or act for or in the name of another Party, unless and only to the extent expressly provided otherwise in the Contract.
7. Third-party rights. Unless expressly otherwise agreed herein, the Contract is not intended to be for the benefit of (and shall not be enforceable by) any person other than the Parties hereto.
8. Entire agreement. The Contract constitutes the entire agreement between the Parties as to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties or the like not recorded herein.
9. Variation. No variation of the Contract or any Order Form or any right or obligation arising from it shall be of any force and effect, unless it is reduced to writing and that document is signed by each of the Parties; provided that an electronic exchange of correspondence between some or all of the Parties hereto (including by way of email), shall not constitute a valid signature for purposes of the aforegoing. The provisions of this clause shall not prevent the amendment of any document incorporated herein by reference after the Commencement Date, if and to the extent that the right to do so has been expressly reserved in the Contract.
10. Waiver. No failure or delay on the part of any Party to enforce its rights shall in any circumstances be construed as a consent, election, limitation or waiver of rights by such Party.
11. Cost of legal services. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re-drafting, entering into and implementation of the Contract (including these terms and conditions and any Order Forms). Should any Party instruct attorneys to take any steps to enforce any rights in terms of the Contract arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
2. Electronic signature

1. Should the Parties want to sign the Contract (including any Order Forms) electronically, or should the Trade Optimisation Module Terms of Use require electronic signature, the signatories shall use a reputable, third-party electronic signature technology and require at least two-factor authentication to verify the identity of each signatory (herein "Signatory"). The failure to do so shall however not render any signature invalid or constitute a breach of the Contract, provided all the Signatories proceed to apply their signatures electronically in the same manner.
2. As an obligation that is personal and severable from the Contract, each Signatory hereby irrevocably undertakes in favour of the Parties to promptly execute a confirmatory copy of the Contract by way of an originally applied, wet ink signature if called upon to do so by any Party. The signature date of the confirmatory copy shall for all purposes be deemed to be the same as that of the electronically signed text. Each Signatory hereby irrevocably authorises any representative of a Party to sign on their behalf as their duly authorised agent if the Signatory fails to promptly give effect to the aforegoing obligation.
3. Where a Party or Signatory disputes an electronic signature, the disputing Signatory shall be obliged to promptly furnish written notice of such dispute to all the Parties, specifying in detail the grounds upon which the electronic signature is contended to be invalid. Such Signatory shall bear the onus of proving the alleged irregularity or invalidity. The failure of a Signatory to promptly furnish the aforementioned notice shall be deemed an irrevocable waiver of the disputing person's right to dispute the validity of their electronic signature and shall result in the electronic signature being deemed valid for purposes of the Contract.
4. Any Party may seek independent forensic verification of a duly disputed electronic signature. Should such forensic verification affirm the validity of the disputed electronic signature, the Party represented by the disputing Signatory shall be liable for all costs incurred in the forensic verification process, without prejudice to any other right or remedy that may be available to a Party under the Contract or Applicable Law.

Data processing particulars