1 DEFINITIONS

For the purposes of these General Terms and Conditions (the “Conditions”), the following words have the following meanings:

1.1 “Affiliate” means a Party’s directors, officers, employees, shareholders, agents, independent contractors, parent, subsidiary, or a company under common ownership with such Party;

1.2 “Customer” means the party or parties entering into the Contract with OPEX;

1.3 “Contract” means the Proposal issued by OPEX to Customer and these General Terms and Conditions, as either may be modified in writing by OPEX and Customer under Clause 18;

1.4 “OPEX” means Operational Excellence (OPEX) Group Ltd, registered in Scotland under Company number SC382192, with registered office at 18 Carden Place, Aberdeen, United Kingdom AB10 1UQ;

1.5 “Party” means OPEX or Customer, as indicated by the context;

1.6 “Price” means the price set out in the Proposal or determined by Clause 5 (as the case may be), subject to adjustment pursuant to the Contract;

1.7 “Project” means the tasks stated in the Proposal and all additional tasks performed by OPEX in connection with the Services;

1.8 “Proposal” means the document(s) issued by OPEX to Customer, including any assumptions, conditions and limitations relating to the Project, in which OPEX describes, and offers to perform, the Services;

1.9 “Services” means any work performed or to be performed by OPEX for Customer under the Contract, excluding OPEX Software as a Service (“SaaS”) solutions; and

1.10 “Site” means any site(s) upon which the Services may be conducted or in relation to which the Services may be performed.

2 INTERPRETATION

Words in the singular also include the plural and vice versa. Clause headings are for convenience only and shall not limit the meaning or construction of the Conditions. Any reference to a Clause means a clause of the Conditions. Any reference to a specific item as included within a general category shall not exclude items of a broader or similar nature, unless otherwise expressly stated. Unless otherwise agreed in writing, the Conditions shall govern the relationship between OPEX and Customer to the exclusion of any other terms and conditions put forward by or on behalf of Customer.

3 PROPOSAL

The Proposal shall be valid for the period as is stated in the Proposal, after which OPEX may withdraw or modify the Proposal. Except as otherwise expressly provided in the Proposal, fees, costs and time schedules stated in the Proposal constitute OPEX’s estimated probable cost and time for the specified Services. The estimated probable cost shall not be deemed to be a guaranteed maximum price for performing the Services. If OPEX at any time considers that a change to the nature, time or extent of the Services is required or advisable, OPEX shall notify Customer of such change and the implications of such change on the Price and time schedule. No such change shall be made without Customer’s consent, except as necessitated by a sudden event or an emergency.

4 STANDARD OF CARE

In performing the Services, OPEX shall exercise that degree of skill and care ordinarily exercised under similar circumstances at the same time by digital services consulting professionals performing substantially similar services at the same or similar locality.

5 PRICES, INVOICES AND PAYMENT

5.1 Professional fees, expenses and subcontracting costs incurred in providing the Services shall be charged as indicated in the Proposal and may be on a time-and-expense or cost reimbursable basis, etc.

5.2 Customer’s delivery to OPEX of a signed acceptance of the Proposal, means Customer agrees to pay for the Services in accordance with the milestone payment dates as stated in the Proposal with payment to be received by that date; or if there are no milestone payment dates, then each invoice is payable by Customer within 30 days of the invoice date.

5.3 All fees quoted are exclusive of value added tax or similar tax as is applied in the country in which OPEX provides the Services, which shall be charged in addition at the prevailing rate. If withholding tax is required to be paid over to any tax authority in connection with the Contract, then the sum payable to OPEX will be increased by an amount that will yield to OPEX the same amount it would have received had no withholding tax been paid. Customer agrees to apply the provisions of relevant tax treaties so as to exempt or reduce any withholding tax. Unless the Parties agree otherwise, all payments by Customer to OPEX shall be made in British Pounds Sterling and by direct transfer to OPEX’s bank account, details of which are set out in the relevant invoice. Invoices may be submitted to Customer by OPEX electronically.

5.4 Customer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the fees payable to OPEX by way of set-off. Notwithstanding any facts and circumstances surrounding the Contract, Customer shall pay OPEX for the Services rendered to it regardless of whether the Services are intended in whole or in part to benefit a third party.

5.5 Unpaid balances shall be subject to interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permissible under applicable law, whichever is less, starting fourteen days from the payment due date. Payments received will be applied first to any accrued interest, with the balance of the payment then applied to any unpaid fees. In addition, OPEX may, after giving two days’ notice, suspend the Services without liability until all past due accounts (including fees and accrued interest) have been paid. If OPEX must take legal action to be paid for the Services and prevails, all collection and legal costs associated with such action shall be reimbursed by Customer.

6 FORCE MAJEURE AND EMERGENCIES

6.1 Price and time commitments under the Contract are subject to equitable adjustments for delays and changed conditions caused by Customer's or the Site owner’s failure to provide complete or accurate information, any required approvals or suitable access to a Site, or for delays and changed conditions caused by unpredictable occurrences or circumstances beyond the reasonable control of either Party, such as pandemic, epidemic, fires, floods, earthquakes, strikes, riots, war, kidnapping, terrorism, threat of terrorism and any resulting security measures, acts of God, changes in applicable law or regulations of any governmental authority, or the presence of hazardous materials or waste of a nature or in locations, quantities, concentrations or conditions which could not reasonably have been expected by OPEX (“Force Majeure”).

6.2 If OPEX determines that the health or safety of its personnel or any subcontractor’s personnel or the environment or property of Customer or others is or may be at risk in performing a Project such circumstances shall also constitute a Force Majeure and OPEX shall have the right to take whatever measures it deems necessary to prevent any threatened damage, injury or loss and recover the reasonable and actual costs of such measures from Customer. Where it is impracticable in an emergency situation to obtain prior Customer authorisation, OPEX shall be entitled to act pursuant to this Clause at its discretion.

8 CUSTOMER RESPONSIBILITIES

Customer shall be responsible for providing all reasonable assistance required by OPEX in connection with the Services, including any assistance specified in the Proposal. In particular, Customer will provide OPEX with the following:

7.1 Secure, clean welfare and office facilities including WIFI and network access (or remote network access), as may be required.

7.2 Reasonable access to and egress from the Site by OPEX and its subcontractors and their respective personnel and equipment and vehicles, (if applicable).

7.3 Customer’s key stakeholders will be readily accessible for information-gathering or decision-making pertaining to the scope of work or as may be necessary to assist OPEX in performing the Services and in successfully carrying out the Project.

7.5 All information related to the Project in Customer’s possession, custody or control reasonably required by OPEX. OPEX has the right to rely, without independent investigation or inquiry, on the accuracy and completeness of any information provided by, on behalf of or at the request of Customer or any governmental authority to OPEX or anyone providing services for OPEX relating to the Services. Customer agrees to review all Proposals, designs, drawings, specifications, reports and other required Project deliverables prepared by OPEX for Customer for the accuracy and completeness of factual information provided by or on behalf of Customer for inclusion therein and to make available to OPEX any further information within Customer’s possession that may affect the accuracy or completeness of the deliverables , outputs or work product to be delivered by OPEX pursuant to the Contract (the “OPEX Work Product”).

7.6 If the Services involve electronic data files that are maintained by or for Customer, Customer shall be responsible for maintaining backup copies of all such files.

7.7 It is a condition on which OPEX undertakes to provide the Services that Customer will not, without OPEX’s prior consent in writing, offer to employ or employ any OPEX employee who is engaged in the performance of the Services, during the period of employment or during a period of one year after the employee has ceased being employed by OPEX.

8 INSURANCE

OPEX shall maintain policies of insurance for, employer’s liability with limit of liability of ₤5,000,000 and the following types of coverage each with an aggregate limit of liability of ₤1,000,000: (i) comprehensive general liability (public liability); (ii) professional errors and omissions.

9 LIMITATION OF LIABILITY

9.1 To the extent permissible under applicable law, in no event shall Customer and its Affiliates or OPEX and its Affiliates, be liable to the other or anyone claiming by, through or under them (including insurers) for any lost, delayed, or diminished profits, revenues, production, business, use or opportunities, or any incidental, special, indirect, or economic losses, wasted costs, diminution of value or consequential damages, of any kind or nature whatsoever, however caused.

9.2 To the extent permissible under applicable law, in no event shall OPEX and its Affiliates be liable (whether under contract or in negligence or under any other law) to Customer and its Affiliates and anyone claiming by, through or under them (including insurers) for any amount in excess of the lower of the Price or Five Hundred Thousand Pounds Sterling (£500,000), in the aggregate.

9.3 Any and all liability of OPEX and its Affiliates in respect of the Services (whether under contract or in negligence or under any other law) shall cease upon the expiry of six years from the date of the final invoice for the Services, save in respect of any claim notified in detail to OPEX in writing prior to the expiry of such period, provided that the liability of OPEX and its Affiliates shall absolutely determine if legal proceedings in respect of any such claim shall not have been commenced by Customer or its Affiliates against OPEX or its Affiliates within 12 months after notification of the claim by Customer to OPEX.

9.4 Other than pursuant to Clause 4, no representation, warranty, condition or other term express or implied as to the quality or nature of the Services is given or accepted by OPEX, and all such representations, warranties, conditions and other terms are excluded to the fullest extent permitted by law. If the Services include: (i) estimating the cost or potential cost of remediation; (ii) estimating the cost of compliance; or (iii) assessing the type, concentration, nature or quantity of any substance, waste or condition at, on or in a Site or structure, based on information provided by Customer or a third party or on representative sampling or inspection of any Site or structure conducted by OPEX, OPEX will prepare such estimate or assessment based upon its experience and, in some instances, the application of a method for estimating or assessing conditions based on representative or random sampling or inspection. Due to the nature of such Services, including, without limitation, the potential for the estimate or assessment to be based on incomplete or inaccurate information or anomalous samples, OPEX does not warrant or guarantee the accuracy of any such estimate or assessment.

9.6 The provisions of this Clause 10 shall: (i) apply irrespective of whether liability of OPEX or Customer or their Affiliates is claimed, or found to be based in contract (including breach of warranty or contract), tort (including negligence or negligent misrepresentation), strict liability, or otherwise; and (ii) survive the completion of the Services or the expiration, cancellation, or termination of this Contract.

9.7 Customer acknowledges and agrees that the limits on OPEX’s and its Affiliate’s liability in this Clause 10 are agreed by reference to the Price, the financial resources of OPEX, the nature and extent of the Services and the availability of professional indemnity insurance on reasonable commercial terms. Accordingly, Customer acknowledges and agrees that the provisions of this Clause 10 satisfy any requirement of reasonableness under any law applicable to the Contract and any claims relating to or arising in connection with the Contract.

9.8 Notwithstanding the above provisions, nothing in the Conditions shall in any way be deemed to exclude or restrict either Party’s liability for death or personal injury (for which no financial limit will apply) caused by that Party’s negligence.

10 TERMINATION

This Contract may be terminated in whole or in part in writing by either Party upon: (i) a breach by the other Party of a material obligation of such Party under the Contract, after being given notice of the breach and a period of not less than 30 days to remedy the breach; (ii) a Force Majeure event delaying the provision of the Services for 60 days or more; or (iii) in the event of a petition being presented or meeting convened for the purpose of winding-up the other Party, the other Party becoming the subject of an administration order or entering into liquidation (whether compulsorily or voluntarily) or the other Party compounding with its creditors generally or having an administrator, receiver, or administrative receiver appointed over all or any part of its assets. Provided that, no such termination shall be effective unless the breaching Party is given: (i) not less than 21 calendar days’ written notice of intent to terminate, after being given 30 days to remedy the breach; (ii) an opportunity for consultation with the terminating Party prior to the effective date of such termination; and (iii) a reasonable opportunity to cure any breach to the extent that such breach can be cured. The foregoing notwithstanding, if Customer fails to pay any invoice within 21 days of its due date, OPEX may terminate the Contract and stop work on any Project immediately upon dispatch of notice to Customer. In the event of termination, Customer shall pay, in accordance with the terms of Clause 5, all outstanding payments for the Services accrued up to the date of termination and reasonable costs incurred by OPEX as a result of such termination, including demobilisation costs. OPEX shall calculate a final invoice following the effective date of termination.

11 USE OF NAME

Customer agrees that OPEX has authority to use Customer’s name as a Customer and to use a general description of the Project in any published materials or written or oral presentations, provided OPEX does not disclose any information which is confidential.

12 THIRD PARTIES AND RELIANCE

Except for the Parties, any Affiliate of a Party that is specifically identified by name in the Contract, and any OPEX Affiliate that provides service relating to the Contract, no other person shall be entitled to: (i) enforce any term of the Contract under the Contracts (Rights of Third Parties) Act 1999; or (ii) rely on the Services or the OPEX Work Product. Customer agrees to indemnify and hold harmless OPEX and its Affiliates from and against any claims resulting from any act or omission by Customer or its Affiliates resulting in a third party relying on the Services or OPEX Work Product.

13 CONFIDENTIALITY

All documents, information and advice exchanged during the course of the Services and all confidential information concerning OPEX, Customer or any of Customer’s activities or any Site shall be treated by the Parties as confidential and shall not be disclosed to any third party (other than professional advisers and Affiliates on a need to know basis) unless: (i) a Party gives its prior written consent; (ii) a Party is required by law or by any governmental authority to make the disclosure; (iii) the document, information or advice enters the public domain other than through fault of OPEX; or (iv) the document, information or advice was in a Party’s possession prior to the disclosure by the disclosing Party. Notwithstanding the terms of any separate confidentiality undertaking(s) agreed between OPEX and Customer, OPEX shall always be entitled to retain an archive copy of the OPEX Work Product produced by OPEX under the Contract, provided that OPEX will treat such information as confidential, as above.

14 FREEDOM OF INFORMATION ACT 2000 ("FOI") AND DATA PROTECTION

If Customer is a public authority or OPEX, based on the nature of its work is or may be deemed to be a public authority, within the meaning of FOI or similar regulations and either Customer or OPEX receives a request to disclose any advice, documentation or information relating to the Services, including for the avoidance of doubt a request to disclose whether or not such information is held by Customer or OPEX, the Party receiving the request will promptly consult the other Party, and take the other Party’s comments into account prior to making any disclosure and, if requested by the other Party, work with the other Party to ensure that exemptions or other legitimate means of ensuring that no disclosure is made are utilised to the extent reasonably possible. All time costs and expenses incurred by OPEX in fulfilling or addressing requests for information relating to the Services under FOI or similar regulations shall be reimbursed in full by Customer, irrespective of whether such request is made directly to OPEX, Customer or otherwise. To the extent that OPEX is instructed to process personal data by Customer as part of the Services, it will do so as a data processor on behalf of Customer, the data controller, and in conformance with the Data Protection Act 2018.

15 INTELLECTUAL PROPERTY

Customer acknowledges and agrees that OPEX shall maintain all ownership rights in any patent, design, trademark, copyright, rights in computer software, database rights, rights in layout, trade secret or rights in confidential information, moral rights, or other industrial or intellectual property right (whether registered or unregistered) and any applications for the same in respect of any invention, information, know-how, process, work, material or method (“Intellectual Property”) conceived, developed or made by OPEX or its Affiliates outside the Services, as well as any enhancement of any Intellectual Property made by OPEX or its Affiliates during the performance of the Services. Customer further acknowledges and agrees that OPEX shall retain ownership rights in any Intellectual Property that is conceived, developed or made by OPEX or its Affiliates in the performance of the Services. Customer is, and will remain, the owner of all Customer data, and grants to OPEX a non-exclusive, royalty-free, worldwide licence to use Customer data for the purpose of performing the Services. OPEX grants to Customer a non-exclusive, royalty-free, revocable, limited licence to use OPEX Intellectual Property as it is incorporated in the OPEX Work Product, for Customer’s internal business purposes specified in the Proposal, and not for any other purpose. Full payment for the Services is a condition precedent to Customer’s rights in the OPEX Work Product.

16 GOVERNING LAW AND FORUM

The Contract shall be governed by the laws of England. The Parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or relating to the Contract shall be referred to the exclusive jurisdiction of the courts of London.

17 ASSIGNMENT TO A MEMBER OF THE ERM GROUP OF COMPANIES

OPEX shall be entitled to assign, novate or transfer the whole part of its rights or the obligations under this Contract to any member of the ERM Group of Companies.

18 SEVERABILITY

Each of the provisions of the Conditions is distinct and severable from the others and if at any time any one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) of the Conditions shall not in any way be affected or impaired and the Parties agree that they will substitute provisions in a form as similar to the offending provision as is possible without thereby rendering them invalid, unlawful or unenforceable.

19 MISCELLANEOUS

Upon Customer’s acceptance of the Proposal, the terms of the Contract shall constitute the entire understanding between the Parties and the full and final expression of such agreement superseding all prior and contemporaneous agreements, representations or conditions, express or implied, oral or written. A variation of the Contract, other than as contemplated by Clauses 5 (Price) and 6 (Force Majeure), is valid only if it is in writing and signed by or on behalf of each Party. Notwithstanding the foregoing, a variation to the Contract is valid if Customer otherwise consents to, or knowingly accepts the benefit of, OPEX's performing the Services under the Contract subject to the variation. The provisions of Clauses 5 (Price), 9 (Limitation of Liability), 11 (Use of Name) to 16 (Governing Law and Forum) and any and all provisions of the Contract, which by their nature generally would be construed as surviving a termination of the Contract, shall survive the completion of the Services or the expiration, cancellation or termination of any agreement between OPEX and Customer, and shall apply to the fullest extent permitted by law. A Party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Contract shall give Notice in writing by one of the following methods of delivery, each of which for purposes of this Contract is a writing: (i) personal delivery; (ii) registered or certified mail, return receipt requested and postage prepaid; (iii) internationally recognised overnight courier, all fees prepaid; (iv) facsimile; or (v) email. Notice shall be provided to the persons identified in the Proposal.

20 SAAS

If OPEX is providing software as a service (“SaaS”) then all such SaaS solutions will be governed by the SaaS Subscription Terms and Conditions, published here: https://www.opex-group.com/saas; and the corresponding service level agreement: www.opex-group.com/sla, as may be updated from time to time.

21 ADDITIONAL CONDITIONS

Set forth on any addendum attached to and made a part of these Conditions by OPEX, or set forth in the Proposal, are additional provisions (if any) that address issues relating to the Project or certain applicable laws and regulations governing OPEX’s performance of the Services.