PRE-RELEASE TERMS OF USE

This Pre-Release Agreement is the agreement referred to in the Pre-Release Terms of Use.

PARTIES

1. Plan Communications Limited a company registered in the Isle of Man with company number 010273V, whose registered office is at No.5 Victoria Street, Douglas, Isle of Man, IM1 2LR (“Plan” or the “Disclosing Party”).
2. The Recipient as that term is defined in the Pre-Release Terms of Use.
3. The End Users as that term is defined in the Pre-Release Terms of Use.

BACKGROUND

1. Plan is developing certain new customer management, data processing and reporting services software, data, technology and materials (collectively, the “Prerelease Program”).
2. The Recipient has requested access to the Prerelease Program as well as details and specific information about the features and functionality of the Prerelease Program described below as Plan’s “Confidential Information” in order to facilitate discussions, meetings and the Recipient’s evaluation of the Prerelease Program (the “Purpose”).
3. Plan is willing to provide access to such Confidential Information, including without limitation to allow the Recipient to test and evaluate the Prerelease Program.
4. In consideration of the benefits to the parties of disclosing and receiving the Confidential Information, the parties have agreed to comply with the following terms in connection with the use and disclosure of Confidential Information.

AGREED TERMS

1. DEFINITIONS AND INTERPRETATIONS
   • 1.1 The following definitions and rules of interpretation in this clause apply in this agreement: Business Day: a day (other than a Saturday, Sunday or public holiday) when the banks in London and Isle of Man are open for business. Confidential Information: means:
     1. all information regarding, related to or associated with the Prerelease Program, including but not limited to trade secrets and/or confidential or proprietary information, know-how, inventions, techniques, processes, algorithms, software programs (including but not limited to the Prerelease Program), Feedback (as defined in clause 3 below), object and/or source code, firmware code, specifications, techniques, methods, records, data, drawings, schematics, user interface, data presentation, notes, models, reports, samples, roadmap information (including without limitation short-term, mid-term and long-term development plans for functionality, utilization, and increasing customer adoption and market penetration), information about marketing and sales, information about products or pricing, information about customers or potential customers, or information about vendors or potential vendors (however recorded or preserved) which is disclosed or made available, directly or indirectly, by the Disclosing Party or its employees, officers, representatives or advisers in relation to the Purpose to the Recipient and its Representatives including but not limited to;
     2. the fact that discussions and are taking place concerning the Purpose and the status of those discussions;
     3. the existence and terms of this agreement;
     4. any information or analysis derived from the Confidential Information; but not including any information that:
     5. is or becomes generally available to the public (other than as a result of its disclosure by the Recipient or its Representatives in breach of this agreement); or
     6. was lawfully in the possession of the Recipient or its Representatives before the information was disclosed to it by the Disclosing Party as reasonably demonstrated by the Recipient or its Representatives; or
     7. became known to the Recipient or its Representatives from a source other than the Disclosing Party who is not, to the Recipient’s or its Representatives’ knowledge bound by any obligation of confidentiality in respect of the information.
   • End User: shall be any individual defined as such in a Pre-Release Terms of Use which have been acknowledged and agreed by the same End User and provided that the End User shall be subject to the same rights and obligations as if they were named as a Recipient herein.
   • Group: in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company.
   • Holding company and subsidiary: mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006.
   • Recipient: shall mean the customer defined as such in the Pre-Release Terms of Use which have been acknowledged and agreed by any Representative of the Recipient who has been defined as an End User in the same Pre-Release Terms of Use. Representatives: employees, officers, members or directors of the Recipient and its Group who actually receive Confidential Information.
   
   
   • 1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
   • 1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
   • 1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
   • 1.5 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.
   • 1.6 References to clauses and schedules are to the clauses and schedules of this agreement.
   
   
2. OBLIGATIONS OF THE RECIPIENT
   • 2.1 The Recipient shall keep the Confidential Information confidential and, except with the prior written consent of the Disclosing Party:
     1. not use or exploit the Confidential Information in any way except for the Purpose; or
     2. not disclose or make available the Confidential Information in whole or in part to any third party, except as expressly permitted by this agreement; or
     3. not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the Purpose (and any such copies, reductions to writing and records shall be the property of the Disclosing Party); or
     4. not use, reproduce, transform or store the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside of its usual places of business; or
     5. apply the same security measures and degree of care to the Confidential Information as the Recipient applies to its own confidential information, which the Recipient warrants as providing adequate protection from unauthorised disclosure, copying or use.
   • 2.2 The Recipient may disclose the Confidential Information to those of its Representatives who need to know this Confidential Information for the Purpose, provided that:
     1. it informs its Representatives of the confidential nature of the Confidential Information before disclosure; and
     2. it will ensure that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with this agreement as if they were the Recipient,
     3. and it shall at all times be liable for the failure of any Representative to comply with the terms of this agreement.
   • 2.3 The Recipient may disclose Confidential Information only to the extent required by law, or requested by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party reasonable notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 2.3, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.


3. PRE-RELEASE PROGRAM TESTING AND EVALUATION
   • 3.1 During the Evaluation Period (defined below), Plan may make the Prerelease Program available to a limited number of the Representatives (each an “End-User”) for internal evaluation and testing. If Plan determines to grant such access, such access shall be fully governed by the terms of this agreement and shall be on the basis of a time-limited, non-exclusive, non-transferable, fully revocable right and license to access and use the Prerelease Program on a remotely hosted basis solely for the Recipient’s internal evaluation or testing purposes in connection with the Purpose and with no right whatsoever to grant a sub-licence.
   • 3.2 Each End-User authorised to access the Prerelease Program shall register and select a unique user name and password (each a “User Identity”). Each End-User must have a unique User Identity and User Identities may not be used by more than one End-User. Each End-User shall be required to review and agree to this Agreement prior to registration and Plan shall have the right to revoke the registration and access of any End-User at any time and in its sole discretion.
   • 3.3 The “Evaluation Period” shall begin after execution of this Agreement by Plan and the Recipient and the first login and use by one of the End Users of the Prerelease Program, and ends on the earliest of:
   1. six (6) months from such date;
   2. hen the availability of the Prerelease Program for access expires;
   3. five (5) days after the Recipient gives written notice to Plan of its intent to terminate the evaluation for any reason whatsoever,
   4. immediately upon written notice by Plan; and
   5. when Plan makes the service commercially available.
   • 3.4 In consideration of its access to the Prerelease Program, the Recipient agrees to provide Plan, at no charge, with timely information about the functioning of the Prerelease Program, including without limitation bugs, problems and suggested improvements, as well as responding to and/or attending periodic and reasonable surveys, questions, meetings and/or interviews. The Recipient acknowledges and agrees that Plan may use any information, suggestions, comments, data, recommendations and feedback, whether generated by the Recipient’s use of the Prerelease Program or collected from and/or provided by the Recipient or the End Users relating to the Prerelease Program (“Feedback”) for any purpose whatsoever, without Recipient’s consent, attribution, or compensation or any obligation on the part of Plan.
   • 3.5 All Feedback shall be the property of Plan, and Plan’s Confidential Information hereunder and the Recipient and any End User hereby irrevocably assigns and transfers to Plan any right, title or interest in that Feedback.
   • 3.6 While Plan intends to commercially release the Prerelease Program, Plan reserves the right at any time, and at Plan’s sole discretion, not to release the Prerelease Program or if released, to offer only to certain parties, to alter prices, features, specifications, capabilities, functions, release dates, general availability or other characteristics of the Prerelease Program. Any such release of the Prerelease Program will be done so on Plan’s standard terms and conditions at the time.
   
   
4. RETURN OF INFORMATION AND ANNOUNCEMENTS
   • 4.1 At the end of the Evaluation Period or at the written request of the Disclosing Party, the Recipient shall as soon as reasonably practicable:
     1. discontinue all use of the Prerelease Program and other Confidential Information;
     2. destroy or, at the Recipient’s option, return to the Disclosing Party all software, manuals, documentation and other technology, information or materials (and any copies) containing, reflecting or incorporating the Confidential Information which is in the Recipient’s or its Representative’s possession or control;
     3. erase (to the extent technically practicable) all the Confidential Information from its computer systems or data storage apparatus; and
     4. certify in writing (email suffices) to the Disclosing Party that it has complied with the requirements of this clause.
   • 4.2 The Recipient shall not make, or permit any person to make, any public announcement (including any postings on social media) concerning this agreement without the prior written consent of the Disclosing Party. Without limiting the foregoing, the Recipient agrees to refrain from making any disparaging or negative comments regarding Plan arising out of or related to the Prerelease Program.
   • 4.3 Notwithstanding termination or expiration of the Evaluation Period, all Confidential Information shall remain subject to the terms of this Agreement.
   
   
5. RESERVATION OF RIGHTS AND RESTRICTION ON USE
   • 5.1 Any and all proprietary rights, including patent rights, inventions, copyrights, trademarks and trade secrets, in and to the Confidential Information shall be and remain with Plan and that the Recipient has no rights to modify, transfer, copy, duplicate, reverse engineer, decompile, recreate, retransmit, disseminate, sell, lend, distribute, publish, broadcast, circulate, give, donate or commercially exploit the Prerelease Program, with or without charge, or prepare any derivative works with respect to, or disclose Confidential Information pertaining to, the Prerelease Program or any part thereof.
   • 5.2 No rights, title or interest in respect of the Confidential Information are granted to the Recipient and if and to the extent that, notwithstanding the foregoing sentence, the Recipient obtains or retains an interest in any Confidential Information, the Recipient hereby irrevocably assigns and transfers to Plan any right, title, or interest that the Recipient has or may have in such Confidential Information under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration.
   • 5.3 This Agreement is intended to provide only for the handling and protection of Confidential Information and evaluation of the Prerelease Program in connection with the Purpose. It shall not be construed as a teaming, joint venture, partnership or other similar arrangement. Neither party is obligated under this Agreement to purchase from or provide to the other party any service or product or enter into any agreement.
   
   
6. DATA PROTECTION
   • The parties acknowledge and agree to comply with (i) applicable data protection legislation (the “Laws”) in relation to personal data shared under the terms of this Agreement and for the Purpose; and (ii) any other contractual agreement between the parties relating to data protection. The Laws shall include the General Data Protection Regulation (Regulation (EU) 2016/679).
   
   
7. LIMITED EXCLUSIVITY
• 7.1 The Recipient acknowledges that the Prerelease Program is a unique solution and Plan owns the Confidential Information.
• 7.2 The Recipient’s obligations, and Plan’s limited exclusive rights, under this Section 6 shall commence as of the date of this Agreement and end on the third (3rd) anniversary of such date.


8. NO WARRANTY
• 8.1 The Prerelease Program and any Confidential Information or other materials provided by Plan pursuant to the Agreement are provided by Plan “as is”, and Plan excludes any and all representations, conditions, warranties or other terms of any kind whether express or implied whether by statute, common law or otherwise, made with respect thereto including, without limitation, any implied warranties of satisfactory quality, fitness for a particular purpose, accuracy, reliability, uninterrupted or error-free operation, privacy, security, data integrity, that the Prerelease Program is defect free or title or against infringement of intellectual property rights of a third party, or that any information or data presented to End-Users via the Prerelease Program is up-to-date.
• 8.2 User acknowledges that: (i) the Prerelease Program is in a pre-release state, is experimental and has not been fully tested; (ii) the Prerelease Program may not meet the Recipient’s requirements; (iii) the use or operation thereof may not be uninterrupted or error free; (iv) the purpose of this Agreement is to provide for the Prerelease Program to be tested and evaluated; and (v) neither the Prerelease Program nor, any data, analytics, insights or any other results produced, or displayed by, the Prerelease Program are to be relied upon by the Recipient and if, despite such acknowledgement, the Recipient relies upon the Prerelease Program, the Recipient relies on the Prerelease Program at the Recipient’s sole risk. The Recipient understands that, under this Agreement, the Prerelease Program is to be used solely for testing and evaluation purposes in the limited way described by this Agreement and not in a production environment.


9. LIMITATION OF LIABILITY
• 9.1 Subject to clause 9.2, neither Plan nor any of its Holding Companies or Subsidiaries not any of their respective directors, officers, employees, agents, successors or assigns (“Plan Parties”), shall have any liability to the Recipient or any other individual or entity for any claim, loss or damage of any kind or nature whether suffered directly or indirectly or are immediate or consequential and whether the same arise in contract, tort (including negligence) and which include without limitation special damages, loss of profits, loss of sales or contracts, loss of anticipated savings, loss of business opportunity, loss of goodwill, loss or corruption of data or any indirect or consequential loss or damage.
• 9.2 The total liability of Plan, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any other contract between the parties shall in no circumstances exceed the lower of (i) £50,000; or (ii) the amount of any commission paid or payable by Plan to the Recipient under a separate contract between the parties for the immediately preceding six (6) months from the date of the of the event forming the subject matter of a claim.
• 9.3 The exclusions in 8.1 shall apply to the fullest extent permissible at law, but Plan does not exclude liability for:
  1. death or personal injury caused by the negligence of Plan, its officers, employees, contractors or agents;
  2. fraud or fraudulent misrepresentation;
  3. breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
  4. any other liability which may not be excluded by law


10. NON-SOLICITATION
• During the term of this Agreement, and for a period of two years thereafter, the Recipient agrees not to solicit any employee or independent contractor of the Disclosing Party or a member of its Group on behalf of itself or any other business enterprise, nor shall it induce any employee or independent contractor associated with the Disclosing Party or its Group to terminate or breach an employment, contractual or other relationship with the Disclosing Party or its Group.


11. INJUNCTIVE RELIEF
• The Recipient acknowledges that damages alone will not be an adequate remedy for the breach of any of the provisions of this agreement. Accordingly, without prejudice to any other rights and remedies it may have, the Disclosing Party will be entitled to the granting of equitable relief (including without limitation injunctive relief) concerning any threatened or actual breach of any of the provisions of this agreement.


12. TERM AND TERMINATION
• 12.1 The obligations of each party shall, notwithstanding any earlier termination of negotiations or discussions between the parties in relation to the Proposed Transaction by written agreement, continue until the third anniversary of the date of this agreement.
• 12.2 Termination of this agreement shall not affect any accrued rights or remedies to which the Disclosing Party is entitled.


13. ENTIRE AGREEMENT AND VARIATION
• 13.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
• 13.2 No variation of this agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).


14. NO WAIVER
• 14.1 Failure to exercise, or any delay in exercising, any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
• 14.2 No single or partial exercise of any right or remedy provided under this agreement or by law shall preclude or restrict the further exercise of that or any other right or remedy.
• 14.3 A party that waives a right or remedy provided under this agreement or by law in relation to another party or takes or fails to take any action against that party, does not affect its rights in relation to any other
party.


15. ASSIGNMENT
• The Recipient may not assign, transfer, sub-contract or deal in any way with, any of its rights or obligations under this agreement or any document referred to in it. Plan may assign, transfer, pledge, encumber or in any other way deal with any of its rights or obligations under this agreement to any other entity in the Plan Group or any third party without notice to the Recipient.


16. NOTICES
• Any notice required to be given under this agreement, shall be in writing and shall be delivered to the email or address details (as may be provided from time to time by a party) and will only be effective:
  1. if by way of e-mail, on the date that it is received by the recipient;
  2. if sent by certified or registered mail (airmail if overseas) or the equivalent, on the date it is delivered or delivery is attempted; or
  3. if by any other method of communication, on the date that it is actually received.


17. SEVERABILITY
• If any provision or part provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed to be modified to the minimum extent possible to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision of part-provision under this clause shall not affect the validity or enforceability of the rest of the agreement.


18. THIRD PARTY RIGHTS
• Except as provided in this clause 14, this agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.


19. COUNTERPARTS
• This agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument as if the signatures on the counterparts were on a single copy of this agreement.


20. GOVERNING LAW AND JURISDICTION
• 20.1This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
• 20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).