PepTalk Master Services Agreement

‍1. DEFINITIONS

1.1 The definitions and rules of interpretation in this Clause 1 apply in this Agreement.

Additional Services: any additional services provided by PepTalk to the Customer from time to time other than the Services including as set out in the Order Form;

Affiliate: with respect to the Customer, any subsidiary or holding company of the Customer, or any subsidiary or holding company of any such holding company;

App: the software application described in Schedule 1 of the Agreement and made available by PepTalk to the Customer;

App Terms of Use: the terms and conditions of use for the App as may be amended from time to time;

Authorised Users: those employees over the age of 18 years of the Customer who are authorised by the Customer to use the Services and the Content;

Business Day: any day which is not a Saturday, Sunday or public/bank holiday in Ireland;

Commencement Date: the date set out in the Order Form;

Confidential Information: all information obtained by one party from the other pursuant to the Agreement which is expressly marked as confidential or which is confirmed inwriting to be confidential within 7 days of its disclosure or which is manifestly of a confidential nature including the terms of this Agreement, the Services, the Content and any other materials provided pursuant to this Agreement;

Content: the content accessed electronically by the Customer as part of the Services, including all text, graphics, images, audio, video, information or other materials available through the PepTalk platform;

Control: the ability of a person to direct that the affairs of the company are conducted in accordance with the wishes of that person;

Customer Content: the data and content, including but not limited to files, images and text, inputted and/or provided by the Customer, Authorised Users, or PepTalk on the Customer's behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;

Customer Dashboard: the web application containing management tools and metrics in relation to the usage of the App and made available by PepTalk to the Customer;

Customer Personal Data: any personal data relating to the Customer, the Customers’ employees, customers or end-users which is processed in provision of, or related to, the Services;

Data Protection Legislation: the General Data Protection Regulation (EU) (2016/679) (the “GDPR”), the Data Protection Acts 1988 to 2018, together with all other applicable laws and regulations relating to the processing of personal data, in each case as amended, supplemented or substituted from time to time,

and the terms "controller", "processor", "processing", "personal data", "personal data breach", "data protection impact assessment", "data subject" and "supervisory authority", shall have the meanings given to them in the GDPR process

Initial Subscription Term: the initial term of this Agreement as set out in Order Form;

Intellectual Property Rights: all intellectual property of whatever nature anywhere in the world and the rights subsisting therein, including, without prejudice to the generality of the foregoing: discoveries; inventions; improvements; designs; processes; research; know-how; confidential and proprietary knowledge and information and any rights protecting same; works of authorship; computer software; databases; database rights; performances; trade or business names; domain names; patents, utility models and short term patents (and applications for same); trade marks and trade mark applications; rights (registered or unregistered and applications for same) in any design; copyright (including rights in computer software and semi-conduct or topographies); business goodwill and reputation and rights protecting same; rights of use of allocated telephone numbers and all intellectual property rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world;

Normal Business Hours: 09.00 to 17.00 local Irish time, each Business Day;

Order Form: the PepTalk standard subscription order form signed by PepTalk and the Customer;

Privacy Statement: the then current PepTalk privacy statement as made available on the App or any other app notified to the Customer by PepTalk from time to time;

Renewal Period: the period described in Clause 12.1;

Services: the subscription services provided by PepTalk to the Customer under this Agreement via the App or any other app notified to the Customer by PepTalk from time to time as set out in the Order Form;

Service Hours: the period described in Schedule 2 of the Agreement;

Sub-processor: any person or entity which is not a party to the Agreement which is engaged by PepTalk to process Customer Personal Data.

Subscription Fees: the subscription fees payable by the Customer to PepTalk for the Services, asset out in the Order Form;

Subscription Term: has the meaning given in Clause 12.1 (being the Initial Subscription together with any subsequent Renewal Periods); and

Support Policy: PepTalk's policy for providing support in relation to the Services as set out in Schedule2.

2. SUBSCRIPTION

2.1 Subject to the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement (in particular, Clause 3 (Restricted Acts), and in consideration of the payment of the Subscription Fees by the Customer to PepTalk, PepTalk hereby grants to the Customer a non-exclusive, non-transferable right to use and to permit the Authorised Users to use the relevant Services during the Subscription Term solely for the Customer’s internal business operations or as otherwise agreed by the parties from time to time in writing.

2.2 In relation to the Authorised Users and the Customer’s access, the Customer undertakes that:

(a) each Authorised User shall keep details of its access secure and confidential;

(b) the Customer shall maintain a written, up to date list of current Authorised Users and provide such list to PepTalk within 5 Business Days of PepTalk’s written request at any time;

(c) the Customer shall permit PepTalk to audit (including remotely through PepTalk’s capture of IP and/or MAC addresses and other login/logout activity data to which it has access) the relevant Services in order to establish the name and relevant details of access of Authorised User and verify use of the Services. Such audit may be conducted no more than once per quarter, at PepTalk’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(d) if any audits referred to in Clause 2.2(c) reveal that access has been provided to any individual who is not an Authorised User, then without prejudice to PepTalk’s other rights, the Customer shall promptly disable the Customer’s access and PepTalk shall not provide access to any such individual; and

(e) if any audits referred to in Clause 2.2(c) reveal that the Customer has underpaid any of the Subscription Fees to PepTalk, the Customer shall pay to PepTalk an amount equal to such underpayment as calculated in accordance with the relevant prices set out in the Order Form (as applicable) within 10 Business Days of the date of the relevant audit.

2.3 On or after the Commencement Date, PepTalk will provide the Customer via email with login password and client code details which will be used by the Customer and, after onboarding, by its permitted Authorised Users, to access and use the Services.

2.4 The Customer shall be responsible for all use of such login and password details and will ensure that all login and password details are kept secure and confidential by Authorised Users at all times and will not and shall procure that Authorised Users do not disclose them to any third parties who are not authorised by PepTalk to use them.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the App, the Customer Dashboard and/or the Content and, in the event of any such unauthorised access or use, promptly notify PepTalk.

2.6 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any Affiliate of the Customer without the prior written consent of PepTalk.

2.7 The Content, the Services and the Additional Services are provided “as is” and PepTalk hereby disclaims all warranties, either express or implied, including but not limited to implied warranties/conditions of accuracy, merchantability and fitness for a particular purpose or any other warranties or conditions implied by applicable law, with respect to the Content, the Services and the Additional Services. PepTalk does not warrant or undertake that the Services, the Additional Services and/or any other materials provided pursuant to this Agreement will meet the Customer’s requirements or that they or their access or use will be uninterrupted, free from viruses, bug or error or completely secure. Except as expressly provided in this Agreement, the entire risk as to the products, Services, the Additional Services and any other materials provided by PepTalk is with the Customer, including for quality and performance and for accuracy or quality of any information transmitted, received or otherwise delivered via the Services and/or the Additional Services.

2.8 All information provided to the Customer through the Services, the Additional Services, Content or the App is provided only as of the date published, and may be superseded by subsequent events or for other reasons.

2.9 Information provided through the Services, the Additional Services or on the App is subject to change. PepTalk may amend, update, suspend or delete any Content without notice at any time and at its sole discretion.

2.10 As part of the Services, PepTalk may provide access to the Customer to the Customer Dashboard. The provisions of this Agreement shall apply in respect of the Customer's access to the Customer Dashboard.

3. RESTRICTED ACTS

3.1 The Customer shall not access, store, distribute or transmit any viruses, or any material, including but not limited to the Customer Content, during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or any other illegal activity; and/or

(f) causes damage or injury to any person or property,

and PepTalk reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access or the access of any Authorised User to any material that breaches the provisions of this Clause 3.

3.2 The Customer shall not (and shall procure that the Authorised Users shall not), except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reuse, download, display, transmit, or distribute all of any portion of the Services or the Additional Services (as applicable) in any form or media or by any means including any part of the data models or screens, and any data that has been entered by PepTalk or one of its agents;

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or the Additional Services;

(c) access all or any part of the Services in order to build a product or service which competes with the Services or the Additional Services;

(d) except as provided for in this Agreement, use the Services to provide services to third parties;

(e) incorporate the Services into the information technology system(s) of the Customer so that the Services becomes indistinguishable from any such information technology system(s);

(f) subject to Clause 14.4, license, sell, rent, loan, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or the Additional Services available to any third party except the Authorised Users;

(g) make the Services or the Additional Services available to any individual under the age of 18 years; or

(h) attempt to obtain, or assist third parties in obtaining, access to the Services or the Additional Services, other than is provided under this Clause 3.

3.3 The Customer must not attempt to gain unauthorised access to the Services, in particular non-public areas, the server on which the Services is stored or any server, computer or database connected to the Services. The Customer must not attack the Services via a denial-of-service attack or a distributed denial-of-service attack.

3.4 The Customer shall comply with PepTalk’s instructions regarding its access and its use of the Services.

4. SERVICES

4.1 PepTalk shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.

4.2 PepTalk shall use commercially reasonable endeavours to make the Services available for the Service Hours as set out in Schedule 2 except for:

(a) scheduled planned maintenance performed during Service Hours provided that PepTalk has used reasonable endeavours to notify the Customer in advance; and

(b) unscheduled emergency maintenance performed during Service Hours.

4.3 PepTalk will, as part of the Services, provide the Customer with the support services set out in the SLA during Normal Business Hours in accordance with PepTalk's Support Policy in effect at the time that the Services are provided. PepTalk may amend the Support Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at PepTalk’s then current rates.

4.4 If the Customer requires Additional Services other than the Services such Additional Services will be provided at PepTalk's discretion and the charges shall be agreed in each instance by the Customer with PepTalk. The Customer expressly acknowledges and agrees that PepTalk has no obligation to provide Additional Services. Where agreed by the parties, PepTalk shall use reasonable endeavours to provide any Additional Services and the provision of such Additional Services shall be subject to this Agreement.

5. CUSTOMER CONTENT

5.1 The Customer shall own all right, title and interest in and to all of the Customer Content and shall have sole responsibility for and hereby warrants the legality, reliability, integrity, accuracy and quality of the Customer Content.

5.2 The Customer grants PepTalk a non-exclusive, royalty free license for the Subscription Term to use the Customer Content for the purposes of providing the Services and the Additional Services.

5.3 PepTalk shall follow its standard archiving procedures for Customer Content. In the event of any loss or damage to Customer Content, the Customer's sole and exclusive remedy shall be for PepTalk to use reasonable commercial endeavours to restore the lost or damaged Customer Content from the latest back-up of such Customer Content maintained by PepTalk in accordance with its archiving procedure. PepTalk shall not be responsible for any loss, destruction, alteration or disclosure of Customer Content caused by any third party (except those third parties sub-contracted by PepTalk to perform services related to Customer Content maintenance and back-up).

6. THIRD PARTY SERVICE PROVIDERS

6.1 The Customer acknowledges that the Services may enable or assist it to access the App content of, correspond with, and purchase products and services from, third parties via third-party websites, software and application programming and that it does so solely at its own risk.

6.2 PepTalk makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website or application programming, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website or application programming is between the Customer and the relevant third party, and not PepTalk. PepTalk recommends that the Customer refers to the third party’s website terms and conditions and privacy statement prior to using the relevant third-party website. PepTalk does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services or the Additional Services.

7. PEPTALK’S OBLIGATIONS

7.1 PepTalk shall provide the Services and the Additional Services with reasonable skill and care.

7.2 The undertaking at Clause7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services or the Additional Services contrary to PepTalk's instructions, or modification or alteration of the Services or the Additional Services by any party other than PepTalk or PepTalk's duly authorised contractors or agents. If the Services or the Additional Services do not conform with the foregoing undertaking, PepTalk 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 undertaking set out in Clause 7.1.

7.3 This Agreement shall not prevent PepTalk from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

7.4 PepTalk warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance.

8. CUSTOMER’S OBLIGATIONS

8.1 The Customer shall:

(a) provide PepTalk with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by PepTalk in order to provide the Services or the Additional Services, including but not limited to Customer Content, security access information and configuration services;

(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c) carry out all other Customer responsibilities set out in this 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, PepTalk may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) be solely responsible for ensuring Authorised Users have been provided with the App Terms of Use and Privacy Statement and have agreed to the App Terms of Use before using the Services and/or the Additional Services;

(e) ensure that the Authorised Users use the Services and/or the Additional Services in accordance with the terms and conditions of this Agreement and the App Terms of Use and shall be responsible for any Authorised User’s breach of this Agreement or the App Terms of Use;

(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for PepTalk, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services and/or the Additional Services;

(g) ensure that its network and systems comply with the relevant specifications provided by PepTalk from time to time; and

(h) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to PepTalk's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.

9. CHARGES AND PAYMENT

9.1 The Customer agrees to pay the Subscription Fees in accordance with the payment terms set out in the Order Form and such Subscription Fees are exclusive of VAT and other applicable taxes.

9.2 PepTalk shall be under no obligation to provide the Services, the Additional Services and/or Content until the Customer has discharged the Subscription Fees.

9.3 PepTalk shall be under no obligation to refund any portion of the Subscription Fees, including in the event that this Agreement is terminated in accordance with Clause 12 due to the default of the Customer, unless otherwise provided for in this Agreement.

9.4 If the Customer fails to make any payment due to PepTalk under this Agreement by the due date for payment, then, without limiting PepTalk's remedies under Clause 12:

(a) the Customer shall pay interest on the overdue amount at the rate of 4% per annum above EURIBOR from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and

(b) PepTalk may suspend all Services and/or Additional Services until payment has been made in full.

9.5 All amounts due under this Agreement shall be paid by the Customer to PepTalk in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

9.6 PepTalk reserves the right to increase the Subscription Fees. PepTalk will give the Customer written notice of any such increase in advance of the proposed date of the increase. If such increase is not acceptable to Customer, it shall notify PepTalk in writing within 5 Business Days of the date of PepTalk's notice and PepTalk shall have the right without limiting its other rights or remedies to terminate this Agreement by giving 30 Business Days written notice to the Customer.

10. INTELLECTUAL PROPERTY

10.1 The Customer acknowledges and agrees that PepTalk and/or its licensors own all Intellectual Property Rights in the Services and the Additional Services. Except as expressly stated herein, this 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 Services or the Additional Services.

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

10.3 The Customer shall ensure that all titles, logos, trade marks, copyright and other notices applied by PepTalk to the Services and/or the Additional Services or any materials provided or produced by PepTalk of the Services and the Additional Services in connection with this Agreement shall be reproduced and not deleted or removed.

10.4 The Customer acknowledges that PepTalk may apply and use advertising in the Services and the Additional Services which will be accessible by and to the Customer and Authorised Users.

10.5 The Customer shall promptly give notice in writing to PepTalk in the event that it becomes aware of any claim that any of the Services or the Additional Services infringes the Intellectual Property Rights of any third party.

10.6 In the case of any matter falling within Clause 10.5, PepTalk shall (at PepTalk’s option) obtain for the Customer the right to continue using the Services or Additional Services in the manner contemplated by this Agreement, replace or modify the Services or Additional Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement immediately by notice inwriting and without liability to the Customer. PepTalk shall not in any circumstances have any liability if the alleged infringement is based on:

(a) a modification of the Services or the Additional Services by anyone other than PepTalk;

(b) the Customer's use of the Services or the Additional Services in a manner contrary to the instructions given to the Customer by PepTalk;

(c) the Customer's use of the Services or the Additional Services after notice of the alleged or actual infringement from PepTalk or any appropriate authority; or

(d) use or combination of the Services with products or software not supplied or approved by PepTalk in circumstances where, but for such combination, no infringement would have occurred.

11. LIMITATION OF LIABILITY AND INDEMNITY

11.1 Nothing in this Agreement limits or excludes the liability of either party for: (i) any liability to the extent that it cannot be lawfully excluded; (ii) the payment of Subscription Fees due and payable; (iii) any breach by the Customer or any of its Authorised Users of Clause 10 (Intellectual Property); and/or (iv) for any infringement by the Customer or any of its agents, sub-contractors or employees of PepTalk’s Intellectual Property Rights.

11.2 Subject to Clause 11.1 and 11.3, PepTalk’s liability in respect of any claim or series of related claims, howsoever arising, whether in contract, tort (including negligence) or otherwise arising out of or in connection with this Agreement shall be limited to the amount of the Subscription Fees paid by the Customer during the 6-monthperiod immediately before the date on which the cause of action first arose (or in the event that no Subscription Fees have been paid by the Customer to PepTalk before the date on which the cause of action first arose, the annualised amount of Subscription Fees payable for the 6-month period commencing on the Commencement Date).

11.3 Subject to Clause 11.2, neither party shall in any circumstances be liable whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:

(a) loss of profits;

(b) loss of business;

(d) loss of anticipated savings;

(e) provided PepTalk adheres to its security obligations set out in Schedule 3, loss or corruption of data or information; and/or

(f) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses,

in any case, whether or not such losses were within the contemplation of the parties at the date of this Agreement, or were suffered or incurred by either party in connection with any matter arising under this Agreement.

11.4 The Customer acknowledges that, while the App promotes physical activity, a healthy diet and wellbeing, none of the Content made available to the Customer or the Authorised Users via the App, the Customer Dashboard, the Services or the Additional Services constitutes professional medical advice, diagnosis or treatment. The Customer agrees that PepTalk shall have no liability for any injuries or damage the Customer or Authorised Users may sustain that result from the use of, or inability to use, the App, the Customer Dashboard, the Services or the Additional Services and is not a substitute for appropriate advice from or consultation with a healthcare provider.

11.5 Except as expressly and specifically provided in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Services, the Additional Services and/or the Content by the Customer, and for conclusions drawn from such use. PepTalk shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to PepTalk by the Customer in connection with the Services, or any actions taken by PepTalk at the Customer's direction.

11.6 Notwithstanding the provisions of this Clause 11, the Customer shall defend, fully indemnify and hold harmless PepTalk 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 Content or the Customer's or the Authorised Users' use of the Services, the Additional Services and/or Content, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) PepTalk provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and

12. TERM AND TERMINATION

12.1 This Agreement shall, unless otherwise terminated as provided in this Clause 12, commence on the Commencement Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this Agreement,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

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

(a) the other party commits a material breach of any term of this Agreement which breach is irremediable or(if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

(b) the other party makes are solution for its winding up, makes an arrangement or composition with its creditors or makes an application to a court of competent jurisdiction for protection from its creditors or an examinership or winding-up order is made or an examiner or receiver is appointed to the other party;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; and/or

(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.

12.3 Without affecting any other right or remedy available to it, PepTalk may terminate this Agreement with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or

(b) there is a change of Control of the Customer.

12.4 Upon termination or expiry of this Agreement for whatever reason:

(a) the Customer shall immediately pay to PepTalk all of PepTalk's outstanding unpaid invoices and interest and, in respect of Services or the Additional Services supplied but for which no invoice has been submitted, PepTalk may submit an invoice, which shall be payable immediately on receipt; and

(b) any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

12.5 Upon termination or expiry of this Agreement for any reason the Customer’s access and all licences and permissions granted under this Agreement shall immediately terminate.

12.6 Termination or expiry of this Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

12.7 Any termination of this Agreement pursuant to this Clause 12 shall be without prejudice to any other accrued rights or remedies a party may be entitled to hereunder or at law.

13. GENERAL

13.1 Dispute resolution.

(a) Any dispute which may arise between the parties concerning the Agreement shall be determined as provided for in this Clause 13. For the purpose of this Clause 13.1, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.

(b) After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this Clause 13 shall be extendable by mutual agreement):

(i) within 5 Business Days, the respective CEOs of PepTalk or nominated directors, and the Customer shall meet to attempt to settle the dispute; and

(ii) if the respective CEOs are unable to reach a settlement within ten Business Days from the date of service of the notice, for the following 15 Business Days the parties shall attempt to settle the dispute by mediation. Unless otherwise agreed between the parties, the mediator shall be nominated by the President for the time being of the Law Society of Ireland, or in event of his being unwilling or unable to do so, by the next senior officer of the Law Society of Ireland who is willing and able to make the appointment.

(iii) If no settlement is reached under Clause 11.1, the dispute may be referred by either party to the courts of Ireland in accordance with Clause 13.16.

13.2 Force majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances, the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Agreement by giving 30 days' written notice to the affected party.

13.3 Further assurance: Each party shall do, sign, execute and deliver all deeds, documents, assurances, acts, instruments and things reasonably required of it by notice from the other party to carry out and give full effect to the Agreement and the rights and obligations of the parties under it. The parties shall use the irrespective reasonable endeavours to procure, so far as they are able that any third parties shall, execute and perform all such further deeds, documents, assurances, acts, instruments and things as any of the parties may reasonably require, by notice in writing to the other to carry the provisions of the Agreement into effect.

13.4 Assignment and other dealings.

(a) The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this Agreement without PepTalk’s prior written consent.

(b) PepTalk may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.

13.5 Confidentiality.

(a) Each party (the “Receiving Party”) agrees that it shall at all times (both during the term of this Agreement and after its termination) keep confidential, and shall not without the prior written consent of the other party (the “Disclosing Party”) use (other than as permitted in Clause 13.5(b)) or disclose to any third party (other than as permitted in Clause 13.5(c), any Confidential Information of the Disclosing Party, unless such information:

(i) was public knowledge or already known to the Receiving Party at the time of disclosure;

(ii) subsequently becomes public knowledge other than by breach of this Agreement;

(iii) subsequently comes lawfully into the possession of the Receiving Party from a third party; and/or

(iv) is agreed by the parties not be confidential or to be disclosable.

(b) The Receiving Party may use the Disclosing Party's Confidential Information in the performance of its obligations and the exercise of its rights under this Agreement. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.

(c) The Receiving Party may, to the extent necessary to implement the provisions of this Agreement (but for no other reason), disclose the Disclosing Party's Confidential Information:

(i) where necessary to comply with any law, regulation, order or legitimate request, to any relevant governmental or other authority or regulatory body;

(ii) to any employees, officers or representatives of the Receiving Party where required for the discharge of the Receiving Party’s obligations under this Agreement; and/or

(iii) provided that, before any such disclosure the Receiving Party shall make those persons aware of its obligations of confidentiality under this Agreement and ensure such persons are bound by obligations of confidentiality no less onerous than those contained in this Agreement.

(d) All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the Receiving Party from the Disclosing Party shall be returned promptly to the Disclosing Party on termination of this Agreement and no copies shall be kept.

13.6 Data Protection.

(a) Each party shall comply with all applicable requirements of the Data Protection Legislation in relation to the processing of Customer Personal Data under this Agreement. This Clause13.6 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

(b) It is acknowledged by the parties that where either party acts in its capacity as controller of the Customer Personal Data processed under this Agreement they do so as an independent Controller. It is further acknowledged by the parties that to any such Processing, the parties are not joint controllers within the meaning of Article 26 of the GDPR.

(a) To the extent that the Customer is the controller and PepTalk is the processor of the Customer Personal Data processed in connection with the Services, the parties agree that each party shall comply with the terms set out in Schedule 3 (Data Protection Obligations).

13.7 Entire agreement.

(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

13.8 Interpretation.

a) The headings in this Agreement are inserted for convenience only and shall not affect its construction.

(b) A reference to a particular law is a reference to it as it is in force 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.

(d) Unless the context otherwise requires, words in the singular include the plural and in the plural include the singular.

(e) Any schedule to this Agreement forms part of (and is incorporated into) this Agreement.

(f)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.

13.9 Variation PepTalk may amend this Agreement at any time for a variety of reasons, such as to reflect changes in applicable law or implement updates to the Services, and to account for new Services or functionality. If an amendment is material, as determined in PepTalk’s sole discretion, PepTalk will notify the Customer in writing. If such material amendment is deemed by a Customer (acting reasonably) to cause a detriment to the Customer, the Customer may give written notice to PepTalk to terminate this Agreement forthwith. Unless written notice to terminate this Agreement is received by PepTalk within 30 days of the notification to the Customer the amendment will be deemed accepted.

13.10 Waiver A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not: (a) waive that or any other right or remedy; or (b) prevent or restrict the further exercise of that or any other right or remedy.

13.11 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.12 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary 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 or part-provision under this Clause shall not affect the validity and enforceability of the rest of this Agreement.

13.13 Notices. Any notice given under this Agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by email to the nominated email address for each party as stated on the Order Form, by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at its registered office for the time being. Any such notice shall be deemed to have been received.

(a) if delivered personally, at the time of delivery;

(b) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and

(c) in proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.

13.14 Third party rights. No one other than a party to this Agreement shall have any right to enforce any of its terms.

13.15 Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.

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

13.17 Jurisdiction. The parties irrevocably agree that the courts of Ireland 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 claim).

SCHEDULE 1

App

The mobile application named PepTalk Wellbeing available for download via Google Play Store and Apple App Store. Minimum operating system requirements can be found on the relevant app store listings. From time to time, we may update the App and/or change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. These updates may change the minimum operating system requirements needed for the app to function correctly. All mobile devices require a motion co-processor and access to the native step counter to automatically calculate steps.

SCHEDULE 2

SUPPORT POLICY

Service Hours

The App will be in service through the duration of the Agreement, subject to the provisions of this contract relating to downtime and maintenance. Downtime is estimated at approximately 5%, in addition to the maintenance provisions (both scheduled and unscheduled)contained in this Agreement.

In the event of extended downtime, PepTalk will endeavour to restore service as speedily as possible.

Support

For the Customer:

Customer support is provided through the person nominated as the Customer’s Account Manager during Normal Business Hours. The Customer will be advised of the contact details of the Account Manager and the person nominated to hold this position may change from time to time.

Response times many vary depending on the nature of the support query and the necessary involvement of third parties. However, PepTalk will endeavour to acknowledge and begin to investigate the Customer’s support query within 24 hours of receipt, where a query is received during Normal Business Hours, or within 24 hours of Normal Business Hours resuming. The Customer will be updated regarding progress on support queries received at regular intervals and on the outcome of the query.

For Authorised Users:

Authorised Users of the app can access support for technical queries using the ‘Chat to Pep’ function within the App, the description of which may change from time to time.

Response times many vary depending on the nature of the support query and the necessary involvement of third parties. However, PepTalk will endeavour to acknowledge and begin to investigate the Authorised User’s support query within 48 hours of receipt, where a query is received during Normal Business Hours, or within 48 hours of Normal Business Hours resuming, and will endeavour to advise the Authorised User of the outcome of their query within a reasonable period of time.

SCHEDULE 3

DATA PROTECTION OBLIGATIONS

Part 1

1. Status and processing obligations

1.1 The subject matter, nature and purpose of the processing of Customer Personal Data by PepTalk, in addition to the types of personal data and categories of data subjects whose personal data will be processed by PepTalk, are set out in Part 2 of this Schedule3.

1.2 To the extent that the performance of the Services by PepTalk involves the processing of Customer Personal Data on behalf of the Customer as processor, PepTalk agrees that it shall:

1.2.1 only process Customer Personal Data for the purposes of performing the Services under or in connection with the Agreement and in accordance with the documented instructions of the Customer;

1.2.2 notify the Customer prior to carrying out any instruction from the Customer if, in its opinion, such instruction is likely to result in processing that is in breach of the Data Protection Legislation;

1.2.3 ensure that any person authorised to process Customer Personal Data under or in connection with the Agreement is subject to an obligation of confidentiality; and

1.2.4 taking into account the nature of the processing of the Customer Personal Data, assist the Customer by way of appropriate technical and organisational measures, insofar as this is reasonably possible, to fulfil its obligations to respond to requests for exercising data subject rights.

1.3 The Customer warrants that all consents, permissions and authorisations have been obtained and maintained in relation to the Customer Personal Data processed by PepTalk under the Services.

1.4 PepTalk will implement and maintain appropriate technical and organisational measures to ensure a level of security to Customer Personal Data appropriate to the risk as required by Data Protection Legislation. In assessing the appropriate level of security, PepTalk will take into account the risks that are presented by the processing of Customer Personal Data, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed.

1.5 PepTalk shall provide reasonable assistance to the Customer in respect of its compliance with:

1.5.1 any data protection impact assessments which are required under the Data Protection Legislation and, where necessary, assist the Customer with any prior consultations with a supervisory authority; and

1.5.2 the requirement to implement appropriate technical and organisational measures to ensure a level of security appropriate under the Data Protection Legislation.

1.6 PepTalk will notify the Customer without undue delay upon becoming aware of a personal data breach involving the Customer Personal Data and provide the Customer with sufficient information to enable the Customer to comply with its obligations in respect of personal data breaches under the Data Protection Legislation.

1.7 Upon request by the Customer, PepTalk will make available to the Customer all information necessary and allow for and co-operate in the conduct of audits or inspection conducted by the Customer or any representative of the Customer, to demonstrate compliance with its obligations laid down in this Schedule 3, provided always that:

1.7.1 any request will not oblige PepTalk to provide or permit access to information concerning PepTalk's internal pricing information, other customers, non-public external reports or internal reports;

1.7.2 audits or inspections shall be carried out during the hours 0900-1700 Monday to Friday only, with at least 30 days’ prior notice given to PepTalk; and

1.7.3 in conducting such audits or inspections the Customer (and its representative, if applicable) shall not cause disruption to PepTalk’s business.

1.8 The Customer shall be responsible for the costs of all such assistance described in paragraphs1.4-1.6 above.

1.9 The Customer consents to PepTalk using Sub-processors, a list of Sub-processors is available at www.peptalkhq.com/legal/subprocessors (as may be updated and amended from time to time in accordance with this paragraph1.9) to process Customer Personal Data. The Customer authorises PepTalk to use other Sub-processors to process Customer Personal Data provided that:

1.9.1 PepTalk shall notify the Customer in advance of any proposed use of a new Sub-processor and/or any replacement of a Sub-processor, and the Customer shall have the right to objection reasonable grounds to the use or replacement of any Sub-processor within 14days of PepTalk notifying the Customer of the change;

1.9.2 when in engaging any Sub-processor PepTalk shall enter into a written contract with each Sub-processor which includes, at a minimum, the same data protection obligations as set out in this Schedule 3; and

1.9.3 PepTalk shall at all times remain liable for the acts and omissions of any Sub-processor as if such acts and omissions were those of PepTalk.

1.10 PepTalk will only processor transfer Customer Personal Data outside of the European Economic Area where the following criteria are met:

1.10.1 the fundamental rights and freedoms of data subjects are respected and enforceable at all times;

1.10.2 such processing or transfer is carried out in a country in respect of which the European Commission has issued a finding of adequacy to the protection of personal data; or

1.10.3 it is able to demonstrate that the processing or transfer otherwise satisfies the requirements of the Data Protection Legislation including, without limitation, via the use of appropriate safeguards such as binding corporate rules or standard contractual clauses approved by a supervisory authority.

1.11 Upon expiration of the duration period of processing set out in Part 2 of this Schedule , and at the choice of the Customer, PepTalk shall either delete or return Customer Personal Data (and all copies of Customer Personal Data) to the Customer, unless PepTalk is required by European Union or Member State law to retain such Customer Personal Data, in which case it shall inform the Customer of such obligations.

Part 2

Details of processing of Customer Personal Data

The subject matter of the processing: Provision of the Services to the Customer

Duration of the processing: The term or expiry of the Agreement and, if required, a reasonable period thereafter

The nature of the processing: Collecting and/or matching personal data of the relevant data subjects:

to communicate information on accessing the Services, and make available the Services, to the relevant data subjects
to offer / provide specific team and/or manager related aspects of the Services
to revoke access to or offboard relevant data subjects from the Services

The purposes of the processing: To perform the Services as set out in the Agreement

The types of personal data: Professional / work email addresses

The categories of data subjects: Employees of Customers or, as agreed, nominated contractors of Customers or nominated employees of group companies of Customers.

Sub-processors: List available at: www.peptalkhq.com/legal/subprocessors

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