1. INTERPRETATION

1.1. The definitions and rules of interpretation in this clause apply in the Agreement.

Agreed Purposes: for the parties to perform and comply with their obligations under the terms of the Agreement.

Agreement: means these Terms and Conditions together with the Commercial Terms.

Authorised Users: those employees of the Customer and/or of any independent contractors acting on behalf of the Customer who are entitled to use the Software under the Agreement.

Business Day: any day which is not a Saturday, Sunday or public or bank holiday in the United Kingdom.

Card Fees: as defined in the Esenda Commercial Terms and under clause 20.

Card Payment Provider: a third party card payment provider that processes debit and credit card payments.

Card Payment Provider Terms: the agreement between the Customer and the Card Payment Provider relating to the processing of debit and credit card payments by the Card Payment Provider for and on behalf of the Customer.

Charges: the charges comprise the SaaS Fee, Processing Fees, and Settlement Fees and are payable to Esenda for the Software and Services. The Fees are described in the Commercial Terms and under clauses 20, 21, 22, and 23. Fees are to be reviewed on an ongoing basis by the parties and updated by written agreement between them or in accordance with clause 16.

Commercial Terms: the commercial terms under which Esenda and the Customer shall first agree details in relation to the Services including the Charges and the Initial Term of the Agreement and which the parties to the Agreement accept on signing the commercial terms (or otherwise accept in writing from time to time).

Confidential Information: means all information whether technical or commercial that is proprietary or confidential and is identified as confidential at the time of disclosure or which ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Contract Year: means a period of 12 months, commencing on the anniversary of the Effective Date and/or each anniversary of the Effective Date.

Customer: means the contracting party who accepts the Agreement, details of which are set out in the Commercial Terms.

Customer Data: all and any customer information (including information relating to End Customers and/or Students) that is inputted into the information fields of the Customer Information System or the Software.

Customer Information System: means the management information system and/or finance and billing system used by the Customer to store and manage information regarding invoicing and payments made by End Customers.

Data Discloser: a party that disclosed Shared Personal Data to the other party.

Data Protection Legislation: 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. To the extent EU GDPR applies, the law of the European Union or any member state of the European Union to which the Customer or an End Customer is subject, which relates to the provision of Personal Data.

Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

Effective Date: the date the parties enter into the Agreement, as set out in the Commercial Terms.

End Customer: a client of the Customer, being a parent, guardian or other individual who makes payments via Esenda to the Customer.

Esenda: Esenda Ltd incorporated and registered in England and Wales with company number 10800880 whose registered office is at 124 City Road, London, England, EC1V 2NX.

esendaPay: the payment portal that forms part of the Software including but not limited to open banking transactions, bank transfers, and connected bank transactions. This does not include cards.

Esenda Data Processing Agreement: the Esenda privacy policy as updated from time to time, the current version of which can be found at https://www.esenda.com/legal.

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

Foreign Exchange Cards: a card payment made in a currency other than GBP. Esenda offers the collection at no cost to the Customer and will cover the cost via the foreign exchange conversion paid for by the payer.

Hosting Services: the services that Esenda provides to facilitate Authorised Users with access to, and use of, the Software.

Integration: shall have the meaning given to it in clause 3.1 and Integrating shall be interpreted accordingly.

Initial Term: any initial term specified in the Commercial Terms (which shall begin on the Effective Date) and if none is specified, the period of 12 months from the Effective Date.

Intellectual Property Rights: all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, service marks, trade names, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

Interchange++: The Interchange fee that goes to the bank that issued the card, plus the scheme fee, plus the acquiring fee.

KYC Onboarding Tasks: the "know your client" tasks (as notified to the Customer by Esenda) which Esenda requires the Customer to carry out in advance of the Launch Date, including but not limited to, selection of third-party banking providers and payment methods.

Launch Date: the date, as specified in the Commercial Terms, from which Esenda shall provide the Services and make the Software available to the Customer.

Local (GBP) Transactions: as defined in the Esenda Commercial Terms and under clause 24.

Maintenance and Support: any error corrections, updates and upgrades that Esenda may provide or perform with respect to the Software, as well as any other support or training services provided to the Customer under the Agreement.

Monthly Pricing Arrangement: means the payment plan wherein the Charges are billed on a monthly basis, in accordance with clause ‎9.4, and as set out in the Commercial Terms.

Normal Business Hours: 9:00am to 5:00pm local UK time on any Business Day.

Permitted Recipients: the parties to the Agreement, the Authorised Users, the employees of Esenda and any third parties engaged to perform obligations in connection with the Agreement.

Premium Cards: a card that is not a Standard Card.

Processing Fees: the fees for processing payments as defined on the Commercial Terms and within the Terms & Conditions.

Scheme Fees: card network (scheme) and interchange fees as set by the relevant card schemes and issuing banks (and other third parties) and are passed through via our Card Payment Provider.

Services: the Hosting Services and/or Maintenance and Support as applicable, given the context in which the term Services is used.

Settlement Fees: The fees for settling funds to the Customer's nominated bank account, as described in clause 23.

Shared Personal Data: the Personal Data that may be shared between the parties under clauses 6.6 to 6.9. Shared Personal Data shall be confined to the categories of Data Subjects detailed within the Esenda Data Processing Agreement, including Data Subjects such as: name of Student; address of Student; name of End Customer; address of End Customer; email address and telephone number of End Customer.

Software: Esenda's proprietary software accessible via the internet in machine-readable object code form only, including any error corrections, updates, upgrades, modifications and enhancements to it provided to the Customer under the Agreement.

Standard Cards: UK and EEA personal Visa / Mastercard debit & credit cards

Student: a student of the Customer.

Term: has the meaning set out in clause 14.1.

Terms and Conditions: these terms and conditions as amended from time to time in accordance with clause 16.

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

Year: each period of twelve (12) months following the Launch Date and each anniversary thereof.

Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the applicable Data Protection Legislation.

1.2. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

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

1.4. Any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. THIS AGREEMENT

2.1. These Terms and Conditions contain general terms relating to the provision by Esenda of the Software and the Services. Esenda and the Customer shall first agree details in relation to the Software and the Services including, without limitation, the Charges and the duration of the Agreement. All such details shall be set out and agreed in the Commercial Terms.

2.2. The Commercial Terms together with these Terms and Conditions will form the Agreement between the Customer and Esenda. In the event of any conflict or inconsistency between the documents forming the Agreement, the following order of preference shall apply:

2.2.1. the Commercial Terms; and

2.2.2. any other third party terms and/or legal notices applicable to the Customer's use of certain aspects of the Services; and

2.2.3. these Terms and Conditions.

2.3. Where these Terms and Conditions are not expressly accepted by the Customer, they will be deemed to have been accepted by the Customer, and the Customer agrees to be bound by these Terms and Conditions, when it takes steps to effect Integration or makes use of the Software and Services.

2.4. These Terms and Conditions shall prevail at all times to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply even if such other provisions are submitted in a later document or purport to exclude or override these Terms and Conditions and neither the course of conduct between parties nor trade practice shall act to modify these Terms.

3. INTEGRATION

3.1. This clause 3 governs the parties' approach and process for the data share via, and the integration of, the Software with the Customer Information System ("Integration") (where applicable). The purpose of the Integration is to enable Esenda to share payment information with the Customer so that the Customer can ensure its Customer Information System holds up-to-date and accurate information regarding the payment status of invoices and other End Customer payment information.

3.2. The parties have standard methods of integration of their respective systems via web-based applications and they shall, if Integrating, make such integration applications available to the other for the purposes of the Integration of the Software with the Customer Information System. In the interim or if Integration is not applicable, the parties shall share data in accordance with the terms of the Agreement.

3.3. Any Integration shall be carried out by both parties with the other party providing all reasonable support and information. The parties shall bear their own costs associated with the Integration.

3.4. The parties to the Agreement shall use all reasonable endeavours to maintain the Integration (if established) and shall provide each with such technical support as the other may reasonably require to be able to perform its obligations under the Agreement.

3.5. Notwithstanding the generality of clause 3.4, the parties agree and acknowledge that once the Integration has been established:

3.5.1. Esenda shall be entitled to maintain a remote connection to the Customer Information System so that Esenda can perform its responsibilities under the Agreement, including, without limitation, for the purposes of performing the Maintenance and Support; and

3.5.2. the Customer shall be entitled to maintain a remote connection to the Software so that it can receive the full benefit of the Software and the Services provided by Esenda under the Agreement.

3.6. If the Customer obstructs, does not permit or withdraws permission for the methods of remote connectivity required by Esenda in order to maintain the connection specified in clause 3.5.1:

3.6.1. Esenda will be unable to comply with its obligations as set out in the Agreement including, without limitation, the provision of Maintenance and Support;

3.6.2. the Software and/or the Integration may develop errors and defects and may no longer function as anticipated; and

3.6.3. Esenda shall not have any liability under the Agreement for any errors and defects in the Software and/or the Integration or any failure to perform the Services and /or comply with its obligations under the Agreement including, without limitation, the provision of the Maintenance and Support.

3.7. Both parties to the Agreement shall use all reasonable endeavours, in accordance with good industry practice, to prevent any unauthorised access to or use of the connectivity links referred to in clause 3.5 and neither party shall knowingly or negligently divulge access codes to the other party's system to any third party (if applicable).

3.8. Due to the extent of third party data that is held by Esenda, the Customer shall indemnify Esenda for all direct costs and losses that Esenda suffers as a result of the Customer's breach of clause 3.7. The indemnity in this clause shall not be subject to the liability cap in clause 13.4.2.

4. SOFTWARE

4.1. In consideration for the payment of the Charges in respect of the Software and the Services, Esenda hereby grants to the Customer on and subject to the Terms and Conditions of the Agreement a non-exclusive, non-transferable licence for the duration of the Term to allow Authorised Users to access the Software (via Esenda's Hosting Service) and to use the Software solely for the Customer's business purposes.

4.2. In relation to the Software the rights provided under this clause 4 are granted to the Customer only and shall not (except where otherwise agreed in writing between the parties) be considered granted to any third party including, without limitation, a subsidiary or holding company of the Customer.

4.3. The Customer shall not:

4.3.1. copy or attempt to copy (other than for the purposes of normal operation or as permitted by clause 4.3.2), duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in the Agreement or as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties;

4.3.2. except to the extent and in the circumstances expressly required to be permitted by Esenda by law, attempt to decompile, disassemble, reverse engineer, modify or otherwise reduce to human-perceivable form all or any part of the Software. All information required to achieve interoperability of the Software with other software programs in accordance with Section 50B of the Copyright Designs and Patents Act 1988, as amended, is available from Esenda;

4.3.3. access all or any part of the Software in order to build a product or service which competes with the Software and/or the Services;

4.3.4. use the Software to provide services to third parties (other than those identified as Authorised Users);

4.3.5. subject to clause 17.2, transfer, temporarily or permanently, any of its rights under the Agreement; or

4.3.6. attempt to obtain, or assist third parties in obtaining, access to the Software (other than those identified as Authorised Users).

4.4. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and shall notify Esenda immediately if the Customer becomes aware of any such unauthorised access or use.

4.5. In relation to Authorised Users, the Customer shall be responsible for the actions and omissions of each Authorised User as if they were the Customer's own and shall, notwithstanding the generality of the foregoing, ensure that each Authorised User keeps any password provided for use of the Software secure and confidential.

5. MAINTENANCE AND SUPPORT AND HOSTING SERVICES

5.1. The parties agree that, in consideration for the payment of the Charges, Esenda shall:

5.1.1. perform the Maintenance and Support services; and

5.1.2. perform the Hosting Services,

in each case for the duration of the Term.

5.2. Maintenance and Support shall include all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software specification as provided by Esenda from time to time. Support for additional features developed by Esenda, as requested by the Customer, may be purchased separately at Esenda's then current rates.

5.3. Esenda shall use reasonable endeavours to maintain and update the Software. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During scheduled maintenance periods, Esenda may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. Esenda shall use reasonable endeavours to avoid unscheduled downtime for Software maintenance.

5.4. Esenda shall maintain technical support on the most current release of the Software.

5.5. The Software will be supported during Normal Business Hours.

6. CUSTOMER DATA

6.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer shall ensure that it is entitled to transfer the relevant Customer Data (including, without limitation, any personal data) to Esenda and shall, to the extent necessary, ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of Customer Data to Esenda so Esenda may lawfully process the Customer Data in accordance with the Agreement on the Customer's behalf.

6.2. The Customer acknowledges and agrees that where an Authorised User uses the Software to send information and data to a third party who also uses the Software (including, without limitation, an End Customer), such data and information will remain available for such third party's use, notwithstanding the earlier termination of the Agreement.

6.3. It is acknowledged that Esenda shall receive Customer Data from the Customer by way of the Integration of the Software with the Customer Information System. In addition, where the Software is used by the Customer to send instructions to third party recipients (for example, End Customers), those instructions will be routed via Esenda's systems. Esenda may therefore be in receipt of additional Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Esenda to use reasonable endeavours to assist with the restoration of the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Esenda in accordance with its archiving procedures. Esenda shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Esenda to perform services related to Customer Data maintenance and back-up).

6.4. Esenda shall be entitled to use Customer Data internally to monitor, develop and improve Esenda's software and services (including the Software and Services provided pursuant to the Agreement) and the customer experience, ensuring the system is set up to maximise performance.

6.5. Esenda shall be entitled to use and disclose information collated from Customer Data in an aggregated manner for Esenda's business purposes, provided that such re-use does not allow the Customer, an End Customer or any other person to be identified or the details of any instructions generated by Authorised Users for the Customer to be identified. This clause 6.5 shall survive the expiry or termination of the Agreement, howsoever arising, for so long as Esenda operates the Software or any service that may replace, substitute or supplement the Software.

6.6. There may be occasions where the parties to the Agreement and independent Controllers sharing Shared Personal Data for the Agreed Purpose. Clauses 6.7 to 6.9 sets out the framework for the sharing of personal data between the parties as Controllers. Each party acknowledges that one party (referred to as the "Data Discloser") may disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.

6.7. Each party shall comply with all the obligations imposed on a Controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate the Agreement with immediate effect.

6.8. Each party shall:

6.8.1. ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes;

6.8.2. give full information to any Data Subject whose Personal Data may be processed under the Agreement of the nature of such processing. This includes giving notice that, on the termination of the Agreement, Personal Data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors and assignees;

6.8.3. process the Shared Personal Data only for the Agreed Purposes;

6.8.4. not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;

6.8.5. ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by the Agreement;

6.8.6. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and

6.8.7. not transfer any Personal Data received from the Data Discloser outside the EEA unless the transferor ensures that: (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.

6.9. Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:

6.9.1. consult with the other party about any notices given to Data Subjects in relation to the Shared Personal Data;

6.9.2. promptly inform the other party about the receipt of any Data Subject rights request;

6.9.3. provide the other party with reasonable assistance in complying with any Data Subject rights request;

6.9.4. not disclose, release, amend, delete or block any Shared Personal Data in response to a Data Subject rights request without first consulting the other party wherever possible;

6.9.5. assist the other party, at the cost of the other party, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;

6.9.6. notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;

6.9.7. at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of the Agreement unless required by law to store the Shared Personal Data;

6.9.8. use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from Personal Data transfers;

6.9.9. maintain complete and accurate records and information to demonstrate its compliance with this clause 6.9; and

6.9.10. provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties' compliance with the Data Protection Legislation.

6.10. If Esenda processes any Personal Data on the Customer's behalf when performing its obligations under the Agreement, the parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Esenda is the Processor. In any such case, both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6.10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

6.11. Without prejudice to the generality of clause 6.10, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Esenda for the duration and purposes of the Agreement.

6.12. Without prejudice to the generality of clause 6.10, Esenda shall, in relation to any Personal Data processed in connection with the performance by Esenda of its obligations under the Agreement:

6.12.1. process that Personal Data only on the documented written instructions of the Customer unless Esenda is required by Domestic Law to otherwise process that Personal Data. Where Esenda is relying on Domestic Law as the basis for processing Personal Data, Esenda shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Esenda from so notifying the Customer;

6.12.2. 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);

6.12.3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

6.12.4. not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

6.12.4.1. the Customer or Esenda has provided appropriate safeguards in relation to the transfer;

6.12.4.2. the data subject has enforceable rights and effective legal remedies;

6.12.4.3. Esenda complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

6.12.4.4. Esenda complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

6.12.5. assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

6.12.6. notify the Customer without undue delay on becoming aware of a Personal Data Breach;

6.12.7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law to store the Personal Data; and

6.12.8. maintain complete and accurate records and information to demonstrate its compliance with clauses 6.10 to 6.13 and allow for audits by the Customer or the Customer's designated auditor and immediately inform the Customer if, in the opinion of Esenda, an instruction infringes the Data Protection Legislation.

6.13. Esenda may use third party processors to process Personal Data in connection with the Agreement. Notwithstanding the appointment of third party processors in accordance with this clause, Esenda shall, as between the Customer and Esenda, remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.13.

6.14. The Customer shall indemnify Esenda against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Esenda arising out of or in connection with the Customer's breach of its obligations under the Data Protection Legislation and/or any breach by the Customer of its obligations under clauses 6.6 to 6.12 of the Agreement.

7. SUPPLIER'S WARRANTIES AND OBLIGATIONS

7.1. Esenda warrants and undertakes that:

7.1.1. it will provide the Services with reasonable care and skill and by means of appropriately qualified personnel; and

7.1.2. the Software will operate substantially in accordance with any Software specification provided to the Customer by Esenda and shall be maintained in accordance with Maintenance and Support.

7.2. In the event of a breach of clause 7.1.2 by Esenda, the Customer shall notify Esenda and prior to taking any other action that is available to the Customer under the Agreement the Customer shall give Esenda a reasonable opportunity to correct the defect within a reasonable time.

7.3. The warranties and undertakings at clause 7.1 shall not apply to the extent of any non-conformance which is caused by errors in transmission or use of the Software contrary to Esenda's instructions or modification or alteration of the Software by any party other than Esenda or Esenda's duly authorised contractors or agents. If the Software does not conform with the foregoing warranties Esenda will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the warranties and undertakings set out in clause 7.1. Notwithstanding the foregoing, Esenda does not warrant that the Customer's use of the Software and the Services will be uninterrupted or error-free.

7.4. The Agreement shall not prevent Esenda from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under the Agreement.

7.5. Any third party services and/or software provided by Esenda for the provision of the Services are provided “as is” without any warranty of any kind either express or implied, and Esenda does not warrant that the third party services and/or any and all products and/or software shall be error-free or that such errors will be corrected. The Customer shall be solely responsible for all costs and expenses associated with rectification, repair or damage caused by such errors.

8. CUSTOMER'S OBLIGATIONS

8.1. The Customer shall:

8.1.1. use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify Esenda promptly of any such unauthorised access or use;

8.1.2. promptly complete the KYC Onboarding Tasks at the request of Esenda;

8.1.3. provide Esenda, in a timely manner, with all necessary co-operation in relation to the Agreement (including, but not limited to, in relation to the Integration) and all necessary access to such information as may be required by Esenda in each case as reasonably necessary in order to render the Services in accordance with the Agreement;

8.1.4. procure the provision of such assistance by its personnel, as may be reasonably requested by Esenda from time to time. The Customer shall use reasonable endeavours to ensure continuity of its personnel assigned to the Agreement;

8.1.5. comply with all applicable laws and regulations with respect to its activities under the Agreement; and

8.1.6. carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Esenda may adjust any timetable or delivery schedule set out in the Agreement as reasonably necessary.

9. CHARGES AND PAYMENT

9.1. The Customer shall pay Esenda the Charges in consideration for the Software and the Services. The Charges that are payable (or the method of calculating the Charges that are payable) as set out in the Commercial Terms.

9.2. All Charges stated or referred to in the Commercial Terms are exclusive of value added tax, which shall be added to each invoice raised at the appropriate rate.

9.3. Esenda may increase the Charges on an annual basis with effect from each anniversary of the Effective Date, as set out in the Commercial Terms. The first such increase shall take effect at the beginning of the second Contract Year.

9.4. Under the Monthly Pricing Arrangement, Esenda shall provide the Customer with a statement at the end of each calendar month showing a breakdown of all of the Charges and the method of calculating those Charges. Esenda shall, at the same time, invoice the Customer for the Charges that are due at the end of that calendar month in accordance with the provisions set out in the Commercial Terms.

9.5. Each invoice shall be due and payable in full and cleared funds and in GBP sterling to a bank account nominated by Esenda 30 days after the invoice date. If Esenda has not received payment of the Charges, in full, within five days after the due date for payment, and without prejudice to any other rights and remedies of Esenda:

9.5.1. Esenda shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.5.2. interest shall accrue on such overdue amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgement.

9.6. The Customer shall be responsible for any costs and charges associated with the conversion of the Charges from any currency other than GBP sterling into GBP sterling.

9.7. For the avoidance of doubt, the SaaS Fee is payable in addition to the Processing Fees and Settlement Fees.

9.9. All payments placed by debit or credit card will be processed by the Card Payment Provider subject to and in accordance with the Card Payment Provider Terms. The Customer acknowledges that Esenda is not a party to the Card Payment Provider Terms.

10. PROPRIETARY RIGHTS

10.1. The Customer acknowledges and agrees that Esenda and/or its licensors own all Intellectual Property Rights in the Software and the Services (excluding the Customer Data). Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or any related documentation.

10.2. Esenda confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

10.3. The Customer covenants that, at the cost and request of Esenda at any time and from time to time, it shall execute such deeds or documents and do such acts or things as may be necessary or desirable to perfect Esenda's Intellectual Property Rights, as detailed at clause 10.1 above.

10.4. Esenda may refer to the Customer as a recipient of the Services on its website and in its marketing materials, and the Customer grants Esenda a non-exclusive, non-transferable, worldwide, royalty-free license to use the Customer's logos and trademarks solely for that purpose.

11. CONFIDENTIALITY

11.1. Each party shall be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party's Confidential Information shall not be deemed to include information that:

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

11.1.2. was in the other party's lawful possession before the disclosure; or

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

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

11.1.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2. Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of the Agreement.

11.3. Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

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

11.5. The Customer acknowledges that the Software and the Services constitute Esenda's Confidential Information.

11.6. Subject to its ongoing right to use aggregated Customer Data in accordance with clauses 6.3 and 6.4, Esenda acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7. This clause 11 shall survive termination of the Agreement, however arising.

12. WARRANTY AND INDEMNITY

12.1. Subject to the provisions of clause 12.2, the Customer shall defend, indemnify and hold harmless Esenda from and against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's misuse of the Software and / or Services and / or the Authorised Users misuse and / or erroneous use of the Software and / or Services.

12.2. Esenda warrants that the provision of the Software and the Services does not, to the best of its knowledge, infringe any United Kingdom patent effective as of the Effective Date, copyright, database right or right of confidentiality.

12.3. In the defence or settlement of claims resulting from any breach of the warranty detailed at clause 12.2, Esenda may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate the Agreement without liability to the Customer. Esenda shall have no liability if the alleged infringement is based on:

12.3.1. a modification of the Software by anyone other than Esenda; or

12.3.2. the Customer's use of the Software in a manner contrary to the Agreement or contrary to any instructions given to the Customer by Esenda; or

12.3.3. the Customer's use of the Software after notice of the alleged or actual infringement from Esenda or any appropriate authority.

12.4. The foregoing states the Customer's sole and exclusive rights and remedies, and Esenda's entire obligations and liability in respect of a breach of the warranty detailed at clause 12.2.

13. LIMITATION OF LIABILITY

13.1. This clause 13 sets out the entire financial liability of Esenda (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Customer in respect of:

13.1.1. any breach of the Agreement;

13.1.2. any use made by the Customer of the Services, the Software or any part of them; and

13.1.3. any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Agreement.

13.2. Except as expressly and specifically provided in the Agreement:

13.2.1. Esenda shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Esenda by the Customer, an Authorised User or an End Customer in connection with the Services, or any actions taken by Esenda at the Customer's direction; and

13.2.2. 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 law, excluded from the Agreement.

13.3. Nothing in the Agreement excludes the liability of Esenda:

13.3.1. for death or personal injury caused by Esenda's negligence;

13.3.2. for fraud or fraudulent misrepresentation, wilful default or any deliberate act or omission by a party; or

13.3.3. any other liability that cannot be lawfully excluded.

13.4. Subject to clause 13.2 and clause 13.3:

13.4.1. Esenda shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Agreement; and

13.4.2. Esenda's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement in any Year during the Term shall be limited to the greater of: (i) £10,000 or (ii) or the total Charges paid by the Customer in respect of the Services during that Year.

14. TERM AND TERMINATION

14.1. The Agreement shall commence on the Effective Date and shall continue thereafter for the Initial Term, subject always to earlier termination pursuant to this clause 14, and shall automatically extend for 12 month periods following the end of the Initial Term until terminated by either party giving to the other not less than one (1) months written notice to terminate to expire at the end of the then current Contract Year. Esenda shall provide the Software and the Services from the Launch Date.

14.2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Agreement without liability to the other if:

14.2.1. the other party commits a material breach of any of the terms of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

14.2.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the IA 1986; or

14.2.3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or

14.2.4. an order is made or a resolution is passed for the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or

14.2.5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; or

14.2.6. an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over the other party (being a company, partnership or limited liability partnership); or

14.2.7. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver; or

14.2.8. a receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or

14.2.9. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days; or

14.2.10. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.2 to clause 14.2.9 (inclusive); or

14.2.11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.3. On termination of the Agreement for any reason:

14.3.1. subject to clause 6.2, all licences granted under the Agreement shall immediately terminate;

14.3.2. subject to clause 6.2, each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;

14.3.3. each party shall, at the request of the other party provide reasonable assistance in managing the exit arrangements from the Agreement. Where a party is so requested to assist the other, the requesting party shall pay all reasonable costs incurred by the assisting party in rendering such assistance; and

14.3.4. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

15. FORCE MAJEURE

15.1. Neither party (the "Defaulting Party") shall have any liability to the other (the "Innocent Party") under the Agreement if the Defaulting Party is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Defaulting Party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic or epidemic or default of suppliers or subcontractors (the "Force Majeure Event"), provided that the Innocent Party is notified of such an event in accordance with this clause 15.

15.2. In the event that the Defaulting Party is delayed or prevented from performing its obligations under the Agreement by a Force Majeure Event, it shall:

15.2.1. give to the Innocent Party written notice of such delay or prevention stating the date such delay or prevention commenced, its cause and an estimate of its duration;

15.2.2. use all its reasonable endeavours to mitigate the effects of such Force Majeure Event; and

15.2.3. resume performance of its obligations as soon as reasonable practicable after the end of such Force Majeure Event.

15.3. If any Force Majeure Event continues for more than six (6) weeks either party may terminate the Agreement on giving fourteen (14) days' written notice to the other.

16. VARIATION

16.1 Esenda may amend these Terms and Conditions (including the fees set out in clauses 20 to 24) from time to time by giving the Customer not less than 60 days' written notice in accordance with clause 18, specifying the changes and the date on which they take effect.

16.2. Esenda may make changes on shorter notice (or, where necessary, with immediate effect) where the change is required to comply with any applicable law or regulation, the requirements of any regulator, card scheme or the Card Payment Provider, or any change in the fees charged to Esenda by a third party. In such cases Esenda shall give as much notice as is reasonably practicable.

16.3. If a change notified under clause 16.1 is materially detrimental to the Customer, the Customer may terminate the Agreement by giving written notice to Esenda before the change takes effect. Termination shall take effect on the date the change would otherwise have taken effect, and no early termination charges shall apply.

16.4. If the Customer does not terminate under clause 16.3, or continues to use the Software or Services after the change takes effect, the Customer shall be deemed to have accepted the change.

16.5. Esenda shall not use this clause 16 to vary the SaaS Fee or the Initial Term agreed in the Commercial Terms during the Initial Term.

16.6. Except as set out in this clause 16, no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. ASSIGNMENT

17.1. Esenda shall be entitled to assign or transfer the Agreement as it reasonably see fit.

17.2. The Agreement is personal to the Customer. The Customer shall not assign, transfer, sub-licence or otherwise deal with any of its rights and obligations under the Agreement without Esenda's prior written consent.

17.3. Esenda may authorise or allow its contractors and other third parties to provide to Esenda and / or to the Customer services necessary or related to the Services and / or Software and to perform Esenda's obligations and exercise Esenda's rights under the Agreement, which may include collecting payment on Esenda's behalf.

18. NOTICES

18.1. Any notice required to be given under the Agreement shall be via email or in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at the address that has been notified by that party for such purposes, or sent by email to the other party's email address as outlined in the Commercial Terms or notified to the other party in writing from time to time.

18.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the time obtained by the sender's email).

19. GENERAL

19.1. Nothing in the Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the parties and neither party shall have authority to bind the other in any way.

19.2. In no event will any delay, failure or omission (in whole or in part) in enforcing, exercising or pursuing any right, power, privilege, claim or remedy conferred by or arising under the Agreement or by law, be deemed to be or construed as a waiver of that or any other right, power, privilege, claim or remedy in respect of the circumstances in question, or operate so as to bar the enforcement of that, or any other right, power, privilege, claim or remedy, in any other instance at any time or times subsequently.

19.3. A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.

19.4. The Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of the Agreement and supersedes any previous agreement or understanding between the parties in relation to such subject matter. In entering into the Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out in the Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.

19.5. The only remedy available to either party for breach of the Agreement shall be for breach of contract under the terms of the Agreement and neither party shall be liable in tort or otherwise arising from such breach. Nothing in clause 19.4 and this clause 19.5 shall limit or exclude any liability for fraud.

19.6. The Agreement shall be governed by and construed in accordance with the laws of England and Wales and each party irrevocably submits to the exclusive jurisdiction of the English courts

20. CARD FEES

20.1. Each card transaction submitted to Esenda is charged a Processing Fee. The Processing Fee is defined in the Commercial Terms.

20.2. Where "(Interchange++)" is stated, the applicable Interchange Fees (including ’scheme fees’) are passed on to the Merchant, plus the Processing Fee.

20.3. The Processing Fee will apply for refunds.

20.4. For each received Chargeback a Chargeback Fee of £8.20 is charged.

20.5. For each reversed Chargeback a Chargeback Reversed Fee of £0.11 is charged.

20.6. For each outgoing balance transfer a fee of £0.15 will apply.

21. BACS FEES

21.1. Each BACS transaction submitted to Esenda is charged a Processing Fee. The Processing Fee is defined in the Commercial Terms.

21.2. Adding a new SUN, post onboarding: £150 (One Off).

21.3. Bacs File recall: £45 per file.

22. BANK TRANSFER FEES

22.1. Each Bank Transfer transaction submitted to Esenda is charged a Processing Fee. The Processing Fee is defined in the Commercial Terms.

22.2 Bank Transfer includes all bank payment methods, for example; Open Banking, Faster Payments, SWIFT, CHAPS.

23. SETTLEMENT FREQUENCY AND FEES

23.1 Card payments will be settled weekly, net of fees, where the funds to be settled are greater than or equal to £10.

23.2 Bank transfer payments will be settled weekly, net of fees, where the funds to be settled are greater than or equal to £10.

24. LOCAL (GBP) TRANSACTIONS

24.1. Local (GBP) Transactions includes all payment methods as defined in clauses 20 and 22 which are made and settled in GBP. For the avoidance of doubt, this does not include BACS transactions.

24.2. Each local transaction submitted to Esenda is charged a Processing Fee. The Processing Fee is defined in the Commercial Terms.