These terms and conditions are entered into between (1) KP Pharma Diagnostics Limited, with registered company number 15098764, with a registered office at Ambe House, Commerce Way, Edenbridge, Kent, United Kingdom, TN8 6ED herein referred to as “KPPD”, and (2) you on behalf of the entity you are entering this agreement for, herein referred to as the “Company”. Each shall be referred to as a “party” or “parties” accordingly.

BACKGROUND

(a) KPPD has developed a proprietary platform for customer booking, enabling customers to book appointments with partnered companies, to undertake e-commerce activity, bookings and/or diagnostic testing utilising the equipment provided by KPPD.

(b) The Company are keen to work with KPPD and would like to have access to the Platform with functionality as specified in the Schedule.

(c) The parties have agreed to work together based on the following terms and conditions:

AGREED TERMS

1. Interpretation

The following definitions and rules of interpretation apply in this agreement (and to the Background).

1.1. Definitions:

Business: means the conduct of, customer books, diagnostic testing and/or e-commerce through KPPD’s Platform,

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

Confidential Information: means all non-public information relation to the business, affairs, assets, customers, customer data and reports, clients, suppliers, business plans, intention or market opportunities of the party making the disclosure, non-public information or material disclosed by a Party to the other under of in connection with this Agreement. This includes any information marked as confidential, or that the parties ought to reasonably have considered to be confidential.

Control: has the meaning given in section 1135 of the Corporation Tax Act 2010 and the expression change of Control shall be construed accordingly,

Data Protection Legislation: means the Data Protection Act 2018 as amended or updated from time to time, inclusive of the UK GDPR.

Diagnostic kit: means the Testing Station and Test kit,

IFU: means the manufacturers operating manual which sets out in full detail the method and operation of the Diagnostic kit and includes all updates and changes thereafter made by KPPD from time to time,

Intellectual Property Rights: means current and future worldwide rights under patent, copyright, database, trade secret, trademark, and moral rights laws, and other similar rights.

Platform: means KPPD’s online platform for booking customers, order processing and ecommerce, where required.

Term: the term of this agreement inclusive of the Initial Term and Renewal Term, as determined in accordance with clause 2,

Test kit: means the diagnostic testing kits more particularly detailed in Schedule 1 Commercials,

Testing Station: means the diagnostic testing machine provided by KPPD,

VAT: Value added tax (or any equivalent tax) chargeable in the UK (or elsewhere),

The terms of the Schedule shall form a part of this Agreement.

2. Term

2.1. This Agreement commences from the last date signed below and shall continue for a period of three (3) years (the “Initial Term”), unless terminated earlier in accordance with the terms of this Agreement.

2.2. Following the end of the Initial Term, this Agreement shall auto-renew for successive 12 month periods (the “Renewal Term”), unless either party provides the other with three (3) months written notice prior to the end of the Renewal Term.

2.3. KPPD may terminate this Agreement at any time and for any reason on 30 days prior written notice and may immediately withdraw or suspend access to the Platform where the terms of this Agreement have been breached by the Company.

2.4. KPPD may terminate this Agreement immediately on written notice in the event that:

2.4.1. the Company consistently breaches the terms of this Agreement, in particular where KPPD acting reasonably considers that the Company is failing to provide customers with an adequate level of service.

2.4.2. the acts or omissions of the Customer, harm the reputation of or bring KPPD into disrepute,

2.4.3. where required by applicable law or by direction of a regulatory authority.

2.5. Either party may terminate this Agreement on written notice if the other party:

2.5.1. commits a material breach of this Agreement which is not capable of remedy or which is capable of remedy and has not been remedied within 10 days of receiving a notice requiring the breach to be remedied;

2.5.2. has a liquidator, receiver, administrative receiver, administrator, nominee or supervisor appointed over the whole or any part of its assets or business or any steps taken in respect of the same, make offers or proposes to make any scheme, composition or arrangement with its creditors, becomes the subject of an order or resolution for strikeoff or dissolution; or is unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986.

3. Consequence of Termination or Expiry

3.1. On termination or expiry of this Agreement:

3.1.1. all rights and licences granted to the Company under this Agreement will cease, and the Company will immediately cease to operate the Business and provide Testing kits.

3.1.2. the Company shall immediately return to KPPD to the Diagnostic Kit and shall be liable for any damage or disrepair,

3.1.3. all outstanding invoices and other sums owed by the Company to KPPD will be paid to KPPD within 30 days of the termination or expiry of this Agreement,

3.1.4. the Company shall cease to use all Confidential Information including the IFU and any and all marketing or promotional material and shall either return this to KPPD or destroy it.

4. Platform Access

4.1. The Company’s access to and permitted rights in respect of the Platform are as agreed and as set out in Schedule 1.

4.2. Subject to the payment of all applicable fees, KPPD shall make available to the Customer the level of access and rights to the Platform as the Company has agreed to in Schedule 1.

4.3. KPPD shall make the Platform available to the Customer, save for scheduled downtime for maintenance, which shall be communicated to the Company in advance and any emergency unscheduled downtime.

5. Company obligations

5.1. The Company undertakes and agrees with KPPD that at all times during the Term it will:

5.1.1. conduct the Business at its sole risk and expense,

5.1.2. act in accordance with good business practice and generally in a manner reasonably satisfactory to KPPD.

5.1.3. comply with KPPD’s instructions in relation to the Diagnostic Kits and otherwise in its dealings with customers and prospective customers.

5.1.4. carry out the Business in accordance with the processes and procedures further detailed in the IFU.

5.1.5. not allot its interests to conflict with those of KPPD and shall not do anything detrimental or prejudicial to the commercial interests or reputation of KPPD

5.1.6. use reasonable endeavours to promote and sell the Test kits and shall work to expand the sale of Test kits by all reasonable and proper means and not to do anything which may hinder or interfere with such sales;

5.1.7. employ a sufficient number of suitably qualified and trained personnel to ensure the proper fulfilment of the Company’s obligations under this Agreement;

5.1.8. not wholesale sell the Test kit,

5.1.9. not export the Test Kits outside of the UK,

5.1.10. maintain, on its own account, an inventory of the Test kits,

5.1.11. insure at its own cost with a reputable insurance company all stocks of and use of the Diagnostic kit as are held by it against all risks which would normally be insured against by a prudent business personal to at least their full replacement value and produce to KPPD on demand full particulars of that insurance and the receipt for the then current premium;

5.1.12. inform KPPD immediately of any change in Control of the Company, and of any change in its organisation or method of doing business that might be expects to affect the performance of the Company’s duties in this Agreement,

5.2. The Company further warrants and represents that any staff who will be administering the Test kits:

5.2.1. will do so in accordance with the IFU.

5.2.2. will have received appropriate training in the delivery of the Test Kits and use of the Testing Stations,

5.2.3. will hold and maintain professional certification evidencing their experience and training in diagnostic testing, and shall provide such evidence on demand to KPPD.

5.2.4. will not conduct or administer more tests per customer, than KPPD has approved in writing.

5.3. The Company shall not:

5.3.1. represent itself as an agent of KPPD for any purpose,

5.3.2. pledge KPPD’s credit,

5.3.3. give any condition or warranty on KPPD’s behalf,

5.3.4. make any representation on KPPD’s behalf,

5.3.5. commit KPPD to any contracts, or 5.3.6. otherwise incur any liability for or on behalf of KPPD.

5.4. The Company shall not, without KPPD’s prior written consent, make any promises or guarantees about the Diagnostic kits beyond those agreed in writing between the parties.

5.5. To the extent that the Company have elected for a while labelled solution (as detailed in Schedule 1), The Company will ensure that it has appropriate terms with customers in place when using the Platform, ensuring that the disclaimer provided by KPPD is made clear and transparent to all users of the Platform, and all applicable notices are displayed at all times. KPPD reserve the right to withdraw or suspend any account which does not adhere to these conditions.

6. KPPD obligations

6.1. KPPD shall:

6.1.1. subject to availability and supply, meet all orders for the Testing kits ordered by the Company through the Platform as soon as practicable.

6.1.2. maintain all licences, consents or permissions required to comply with its obligations under this Agreement.

6.1.3. comply with all applicable laws as they apply in the distribution of the Products and the availability of the Platform.

6.1.4. replace a faulty Testing Station, if notified to KPPD within 5 Business Days of a fault being determined and such fault being verified and approved by KPPD.

7. Intellectual Property Rights

7.1. Save as expressly granted herein, neither party shall have any right or licence over the Intellectual Property Rights of the other party. As between the parties, the Company retains all Intellectual Property Rights in customer data and KPPD retains all Intellectual Property Rights in the Platform.

7.2. Subject to Clause 7.1, the Company provides to KPPD a worldwide, sub-licensable, royalty free right to place the Company’s logo on the Platform. KPPD shall adhere to the Company’s branding guidelines and instructions in relation to its logo, as may be provided by the Company to KPPD from time to time.

7.3. Subject to Clause 7.3 and the payment of all applicable fees, KPPD shall licence to the Company, access to the Platform to conduct the Business for the permitted uses as detailed in Schedule 1, which may be updated by mutual written agreement between the parties from time to time.

7.4. The Company’s access and right to use the Platform is conditional upon the Company not:

7.4.1. removing or attempting to remove any copyright or trademark notices on the Platform;

7.4.2. reversing engineering, decompiling, deconstructing, or in any way attempting to derive the source code of the Platform.

7.4.3. conducting any penetration or performance testing of Platform at any time,

7.4.4. attempting to gain unauthorised access to services or networks connected to the Platform.

7.4.5. attempting to circumvent the user access limitations to the Platform provided to you by KPPD,

7.4.6. using any personal data from the Platform, except as required to provide services to customers,

7.4.7. make the Platform available to any unauthorised third party,

7.4.8. redistribute or resell, sublicence access or use to the Platform,

7.4.9. use the Platform in any way which could in KPPD’s sole opinion, create an unreasonable risk to customer’s from a security or privacy perspective.

8. Confidentiality

8.1. Save as may be required by applicable law, each party agrees that it will keep confidential and will not (whether directly or indirectly) disclose, use copy, or modify any Confidential Information belonging to the other.

8.2. Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under this Agreement. The Parties shall:

8.2.1. maintain adequate security measures to safeguard the Confidential Information from unauthorised access, disclosure, use misappropriation or exploitation, and in no event use less than the same degree of care as the receiving Party uses to safeguard its own Confidential Information; and

8.2.2. keep in confidence all Confidential Information received and not distribute, disclose, or disseminate to any third party.

8.3. Information is not Confidential Information if:

8.3.1. it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Recipient in breach of this agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as Confidential Information);

8.3.2. it was available to the Recipient on a non-confidential basis before disclosure by the Discloser;

8.3.3. it was, is, or becomes available to the Recipient on a non-confidential basis from a person who, to the Recipient's knowledge, is not under any confidentiality obligation in respect of that information;

8.3.4. the parties agree in writing that the information is not confidential.

8.4. Subject to the provisions of this Clause 8, a party may disclose Confidential Information to the minimum extent required by:

8.4.1. an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; or

8.4.2. the laws or regulations of any country to which its affairs or those of any of its Group Companies are subject.

9. Renumeration and Fees

9.1. The Company shall pay to KPPD all applicable fees under this Agreement as detailed within Schedule 1: Commercials, on a monthly basis without set-off and within 15 days of receipt of an invoice from KPPD.

9.2. The fees payable under this Agreement include:

9.2.1. the platform access fee,

9.2.2. the monthly subscription service agreement feefor the Testing Station,

9.2.3. the charges for ordering Testing kits in the quantities as required by the Company for markers based on the subscription agreement chosen.

9.3. KPPD reserve the right to uplift fees on an annual basis in line with the Bank of England rate of inflation.

9.4. 9.5. In the event you choose to change the subscription service agreement KPPD will amend the monthly charge at the next monthly renewal date and will continue to be charged in accordance with the terms of this agreement.

9.6. As between KPPD and the Company, the Company is solely responsible for the collection, remittance and payments of any or all taxes, charges, levies, assessments and other fees of any kind imposed by governmental or other authority in respect of the purchase, sale, importation, lease or other distribution of the Testing kits.

9.7. All sums payable under this Agreement are exclusive of any VAT chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes.

9.8. Risk in the Diagnostic Kit transfers to the Company once it has been signed for and received at the Company’s designated premises. Save for the Testing Station, title of Diagnostic kits is transferred once funds have been cleared and you have accepted the order in your inventory.

9.9. The Company acknowledges and agrees that the Testing Station is leased to the Company under the terms of this Agreement, and that the Company shall at all times remain liable for any damage or fault to the Testing Station.

9.10. Save as may be agreed between the parties, all patient payments shall be processed through the Platform and be made directly to the Company through the Platform.

10. Data Protection

10.1. The parties agree and acknowledge that for the purposes of the Data Protection Legislation, each party is an independent Data Controller. The Parties agree that the Company shall have access to customer personal data for the purposes of customer booking and administration on the Platform. KPPD may have access to personal data for the purpose of administering the Platform and providing technical support where required.

10.2. For the purposes of this Clause, Data Controller, Data Processor, processing and data subject shall have the meaning given to them in the Data Protection Legislation.

10.3. You will:

10.3.1. ensure that you have appropriate data privacy notices in place notifying customers of how their data is shared;

10.3.2. ensure that you have secured all necessary consents or other lawful means of processing personal data contemplated under this Agreement, including the sharing of personal data with KPPD;

10.3.3. notify KPPD immediately in writing on receipt of any data subject access request or other similar data subject right,

10.3.4. notify KPPD within 24 hours of becoming aware of any potential data breach of your information security infrastructure and provide all relevant information reasonably requested by KPPD.

10.3.5. notify KPPD immediately of any correspondence you have received from a regulator or other governing body concerning the business.

10.3.6. maintain at all times a sufficient technical and organisational measures to protect the personal data made available to you through the Platform from any unauthorised or unlawful third party access.

10.3.7. not transfer at any time any personal data outside the UK or EEA without first seeking the prior written approval of KPPD.

10.3.8. ensure that all staff working within the Business who have access to the Platform receive appropriate and regular data protection training.

10.3.9. ensure to keep accurate records of your personal data processing under this Agreement, and make these records available for inspection by KPPD on prior reasonable written notice.

11. Limitation of Liability

11.1. Notwithstanding any other provision of this Agreement, neither Party excludes or limits liability for:

11.1.1. fraud or fraudulent misrepresentation,

11.1.2. death or personal injury caused by negligence, and

11.1.3. any other liability which cannot be limited or excluded by law.

11.2. Subject to Clause 11.1, KPPD’s total aggregate liability arising out of or in connection with this Agreement shall not exceed the fees paid by the Company in the 3 month period preceding the first claim.

11.3. Subject to Clause 11.1, KPPD shall not be liable for any:

11.3.1. loss of profits,

11.3.2. loss of revenue or business,

11.3.3. wasted expenditure costs,

11.3.4. loss of anticipated savings,

11.3.5. loss of data or corruption of data,

11.3.6. third party claim arising our of or in connection with the Company’s use of the Platform or Diagnostic kit,

11.3.7. loss of or harm to reputation,

11.3.8. loss of business or commercial opportunity, (in each case whether direct or indirect).

11.4. Subject to Clause 11.1, no party shall have any liability to the other under or in connection with this Agreement whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, arising under or in connection with this Agreement for any special, indirect or consequential losses.

11.5. The Company shall maintain appropriate professional indemnity and employers liability insurance coverage with a reputable insurer, throughout the Term of this Agreement to cover the Company’s liabilities under this Agreement and shall provide evidence of such coverage as and when requested by KPPD.

11.6. The Company shall indemnify, defend and hold KPPD harmless from any losses, claims, damages, expenses arising out of or in connection with: (1) the Company’s conduct of the Business, (2) the provision of any services to the Company’s customers, (3) any breach of this Agreement by the Company, or (3) in relation to the processing of any personal data.

12. WARRANTIES

12.1. The Company warrants and represents that:

12.1.1. it understands its obligations under this Agreement,

12.1.2. it is not subject to any other obligation which would prevent it entering into or impede the performance of its obligations hereunder, and

12.1.3. it alone will carry the risk of carrying on the Business.

12.2. KPPD does not make any warranty or give any representation as to how the Business will perform or the accuracy of any and all financial information provided by KPPD prior to the date of this Agreement.

12.3. You acknowledge and agree that the Platform and Diagnostic kit are provided on an “as is” and basis should not be considered a substitute for actual medical diagnosis or examination with a doctor. Any report provided and the information contained within the report are not medical advice, medical recommendations or medical treatment regarding any aspect of your health, nutrition or wellbeing.

13. Notices

13.1. All notices given under this Agreement shall be in writing and may be given by hand or post to the addresses set out above, or the email addresses set out in the Schedule:

13.2. Such notice shall be deemed to have been received via postal delivery requiring a recipient’s signature or once delivered. KPPD may provide notice to you via the email address you have provided during the onboarding process.

14. General

14.1. Both Parties represent and warrant that they are duly authorised and empowered to enter into this Agreement.

14.2. The Company may not transfer or assign any rights under this Agreement without obtaining the prior written consent of KPPD.

14.3. This Agreement contains the entire agreement between the Parties relating to the subject matter contemplated by and supersedes all previous agreement between the Parties relating to the subject matter.

14.4. Any variation or amendment to this Agreement will not be effective unless made in writing and signed by duly authorised representatives of both parties, save that KPPD may update pricing by providing prior written notice to the Company.

14.5. Nothing in this Agreement shall be deemed to constitute or imply any partnership or joint venture between the Parties.

14.6. If any term of this Agreement is held to be unenforceable, that provision will be deemed to have been deleted and will not effect the enforceability of the remaining terms.

14.7. No failure, delay relaxation, or indulgence on the part of either party in exercising any power or right conferred upon such party in this Agreement shall operate as a waiver or right, nor shall any single or partial exercise of any such power or right preclude any other further exercise of any other power or right.

14.8. In the event of a dispute the parties shall discuss all issues in good faith with a view to resolving the dispute amicably.

14.9. No third party shall have any right to enforce any right or obligation under this Agreement.

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