Terms and Conditions of Sale of Goods and Provision of Services

1. DEFINITIONS AND INTERPRETATION

These Terms and Conditions shall be interpreted in accordance with Schedule 1 and where applicable Schedule 2 and Schedule 3.

2. BASIS OF PROVISION OF GOODS AND SERVICES

2.1 An accepted Order Form together with these Terms and Conditions constitutes a binding Agreement between Katalyst and the Client, where the Client agrees to purchase Goods and/or Services defined in the Katalyst Accepted Order pursuant to these Standard Terms and Conditions.

2.2 Each order for Goods and/or Services by the Client shall be deemed to be an offer by the Client to purchase Goods and Services subject to these Terms and Conditions.

2.3 Client shall be deemed to have accepted an Order Form and these Terms and Conditions when an authorised representative of the Client has approved the Order in writing.

2.4 Any variation, cancellation or waiver of these Terms and Conditions shall only be effective if made in writing and signed by a duly authorised representative of Katalyst. For the avoidance of doubt, Katalyst’s delivery drivers, and on-site operational staff are not so authorised.

3. PRICING AND PAYMENT

3.1 Payment for all Goods and Services are to be made in advance and as described in the Accepted Order.

4. DELIVERY OF GOODS

4.1 The Parties recognise that shipping services are not always reliable, and that Client should hold sufficient stock of Goods in case a delivery is later than expected.

4.2 Delivery times will be confirmed once payment has been made in full. Such delivery times may vary from the delivery times given on the Order Form if there is a delay in payment.

4.3 Katalyst will use all reasonable efforts to meet any time or date for delivery given. Notwithstanding this, any time or date for delivery given by Katalyst is an estimate only and Katalyst will not be held liable or responsible for any delay or non-delivery on a specific day, where the delay or non-delivery is due to the courier service. In this instance Katalyst will not be liable nor for any loss, expense or damage whatsoever resulting from any such delay or non-delivery and the Client shall not be entitled to treat these Terms and Conditions as repudiated by reason of late delivery.

4.4 When signing for Goods from Katalyst directly or via a courier, the Client agrees to check that the quantity of Goods received agrees with the number on the delivery note and immediately to record any numerical discrepancy or obvious external damage on the delivery note. Katalyst will consider claims for damages, shortages or incorrect delivery only if notified within 7-days of receipt of the Goods and claims for non-delivery only if notified within 14-days of the date of invoice. If any claim is so notified, Katalyst’s sole responsibility will be limited to replacing or redelivering the goods in question or collecting excess deliveries at its expense and the Client will not be entitled to any other compensation whatsoever. Katalyst will accept no liability for any claims howsoever caused not notified within these periods nor will Katalyst have any liability in respect of damage or shortages caused by the acts or omissions of the Client.

4.5 Katalyst reserves the right to deliver in more than one consignment.

4.6 Katalyst will not accept the return of unwanted Goods correctly delivered against an order.

5. MANUFACTURER’S LIMITED PRODUCT WARRANTY

5.1 FRANKD products sold to the Client are subject to the Manufacturer’s Limited Product Warranty (MLPW), as defined in Schedule 2, which is subject to change from time-to-time without notice. Neither Katalyst nor the Manufacturer make any additional product warranty or guarantee or claim of performance with respect to FRANKD products sold to Client.

5.2 All FRANKD products sold to the Client must be used, transported and stored strictly in accordance with the Manufacturers’ Instructions for Use, which may be updated from time-to-time without notice, and failure to follow these instructions will invalidate any claim made by the Client with respect to the MLPW.

5.3 Where the Client wishes to exercise it’s rights under the MLPW it may be required to demonstrate defects by providing detailed information to Katalyst and/or the Manufacturer as required under the terms of the MLPW and strictly within the warranty period. The Client may also be required to return any suspected defective FRANKD product to the Manufacturer to verify any such defects.

5.4 Given the nature of the FRANKD product, FRANKD kits cannot be returned for resale to either Katalyst or the Manufacturer.

5.5 Katalyst shall not be liable to the Client in any civil proceedings brought by the Client against Katalyst in respect of a breach of the any applicable law, shipping, storage, handling or use instructions or any other applicable health and safety legislation or any regulations, orders or directions made pursuant to such health and safety legislation in force from time to time or under any directive, regulation, order or other instrument relating to health and safety, where such exclusion of liability is permitted by law.

6. SAFETY AND RECALL

6.1 Katalyst shall provide FRANKD to the Client with the Manufacturer Instructions for Use. Katalyst shall provide such documentation to Client from time-to-time upon request.

6.2 The Client should satisfy itself that the persons responsible for the shipping, storage, handling and/or use of any FRANKD tests supplied by Katalyst have all the information required on health and safety requirements (as required by any applicable law and conditions of storage and any health and material safety data sheets and/or summaries of product characteristics).

6.3 In the event of any product recall the Client, will cooperate with Katalyst to enable it to fulfil its vigilance duties, in entirety, with respect to the Medical and IVD Device Directives 92/42/EEC and 98/79 EC.

6.4 The Client shall keep a register and keep GeneMe Sp. z o.o. informed of any complaints, of non-conforming devices and of recalls and withdrawals.

6.5 The Client shall maintain a register or log of any returns which should include all FRANKD kit details (including LOT numbers, date of delivery details, storage details) and reasons for their return.

7. STORAGE, TRANSPORT AND USAGE CONDITIONS

7.1 All FRANKD products must be stored and transported by the Client in accordance with product temperature conditions as issued or amended by the Manufacturer from time to time including in the Manufacturer’s Instructions for Use. Failure to do this will invalidate the MLPW.

7.2 The Client acknowledges that FRANKD test kits are perishable and will become denatured if they are stored or transported incorrectly.

8. YOTI AND DATA PROTECTION

8.1 Katalyst and Client agree to duly observe and comply with all applicable obligations under any relevant data protection legislation which arise in connection with the use of Goods or the provision of Services by Katalyst to Client.

8.2 The Yoti FRANKD application is provided as part of the FRANKD test kit for the delivery of the FRANKD test results. The Client is under no obligation to use the Yoti FRANKD application to deliver test results.

8.3 All personal data in relation to the Yoti FRANKD application are processed by Yoti Ltd, Fountain House, 130 Fenchurch Street, London, EC3M 5DJ (company number 08998951). If required by the Client a separate data processing agreement may be agreed between the Client and Yoti should the Client choose to use the Yoti FRANKD application in relation to information security and data privacy.

8.4 If the Client uses the Yoti Web Application to deliver test results, then in using the Yoti Web Application, the Client is deemed to have reached an agreement with Yoti on information security and data privacy and accepted the terms of Yoti EULA in Schedule 3.

9. TESTING-AS-A-SERVICE

9.1 Katalyst shall provide testing-as-a-service as defined in the Accepted Order in terms of dates, times and numbers of tests to be consumed.

9.2 All tests carried out by Katalyst are conducted on behalf of the Client.

9.3 The Client shall be liable for any additional costs that may arise out of any change of location of the testing-as-a-service address or date or time that many occur once Purchase Order has been accepted by Katalyst.

9.4 The Client acknowledges that all tests carried out by Katalyst are screening tests and not clinical diagnostic tests. Under no circumstances should clinical decisions should be made on the basis of test results that are derived from tests carried out by Katalyst.

9.5 The Client acknowledges that interpretation is required to determine the presence of SARS-CoV-2, as such judgement will be used on occasion when a result is inconclusive. Where results are inconclusive, Katalyst recommends an immediate retest where possible.

9.6 The number of tests committed to in the Accepted Order shall relate to the number of tests consumed, and not the number of people tested. For the avoidance of doubt any tests that are processed in the PCR machine, whether used to test a person or not, are deemed to be consumed.

9.7 Client shall provide suitable testing area accommodation for Katalyst personnel and equipment to set-up and operate testing-as-a-service, including a clean office environment, one desk per PCR machine, seating, power and a reliable Internet connection.

9.8 Testing is provided on behalf of the Client, and it is the responsibility of the Client to:

9.8.1 carry out any risk assessment in relation to potential COVID-19 infection; and

9.8.2 define their own testing processes to fit their specific requirements, to reduce risk of COVID-19 infections, both prior and post testing (including when test results are inconclusive); and

9.8.3 communicate to all relevant employees, contractors and guests that they will be tested and how to prepare for such testing; and

9.8.4     inform all relevant employees, contractors and guests when and where they will be tested; and

9.8.5     manage the flow of people to the testing area; and

9.8.6     dispose of all waste produced as part of the testing, including clinical waste.

9.9 Katalyst shall endeavour to deliver the defined number of tests per day in the time defined in the Accepted Order Form, however, where there are insufficient numbers of people to test at the agreed times, or the working conditions do not permit it, fewer people may be tested. In such circumstances, the Client shall not be due any refund.

9.10 Katalyst shall perform the defined number of tests during the planned daily testing times. If the Client wishes Katalyst to continue beyond this time or test more people, Katalyst, upon its sole discretion, may choose to do so. However, additional charges may be payable by Client.

9.11 Where the number of people tested is below the planned number for the Accepted Order, Client may request to be given any unused FRANKD test kits for their own use and Katalyst shall provide to Client any unused tests, provided such request is made while Katalyst is still working on-site.

9.12 The Parties acknowledge that due to capacity constraints, where the number of people tested is below the planned number for the day, for any reason, it may not be possible to reschedule such tests on subsequent days.

10. TRAINING

10.1 Katalyst shall use reasonable endeavours to supply any training defined in the accepted Order. Where this training includes on-site testing at a Client’s premises, then Clause 9 above will also apply to any training.

10.2 The Client shall be liable for any additional costs that may arise out of any change of location of training address or date that many occur once the Purchase Order has been accepted by Katalyst.

10.3 Katalyst will supply manufactures documentation, including the prevailing Instructions For Use (IFU), and the Manufacturers Material Safety Data Sheets (MSDSs) and Instructions For Use (IFU) during or before training. In addition, Katalyst will supply its own training materials, including the FRANKD Step-by-Step Guide. All materials to be supplied in digital form.

10.4 The quality of training depends on the number of tests conducted by the trainees. The Client may be required to organise and provide testees in order to provide testing subjects for training purposes. Katalyst will not be held liable or responsible for any delay or non-delivery of any training, nor for any loss or expense whatsoever resulting from any such failure of the Client to provide sufficient numbers of testees.

10.5 Katalyst reserves the right to change the course content of any training at any time and without notice.

11. CONFIDENTIAL INFORMATION

11.1 Both Parties are aware that in the course of the preparation and delivery of testing-as-a-service and/or training they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be Confidential Information, except where it is Excluded Information. Where one Party “the receiving party” obtains Confidential Information of the other Party “the disclosing party” in connection with the performance of this Agreement, the receiving party shall keep the Confidential Information confidential, shall only use the Confidential Information for the purposes of enabling the performance of the Agreement and shall not disclose the Confidential Information to any third-party except where:

11.1.1   the disclosing party has consented in writing to the disclosure; or

11.1.2   the receiving party is required to disclose by law; or

11.1.3   the disclosure is made to the receiving party’s contractors or Affiliates in order to fulfil its obligations under this Agreement, subject to their being bound by a duty of confidentiality equivalent to the obligation of the receiving party under the Agreement; or

11.1.4   the disclosure is made to the receiving party’s professional advisors, auditors and insurers, subject to their being bound by a duty of confidentiality equivalent to the obligation of the receiving party under the Agreement.

11.2 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this agreement.

12. INTELLECTUAL PROPERTY

12.1 Client acknowledges that the Intellectual Property Rights of all FRANKD related marketing materials belong to GeneMe Sp. z o.o.

13. WARRANTIES

13.1 The Parties hereby warrant, represent and undertake to each other that they have the right to enter into and fully perform this Agreement and that it will remain in full compliance with all applicable Laws and rules, including any applicable data protection or privacy laws throughout the Term.

13.2 Katalyst provides no warranties with respect to FRANKD, express or implied, and all such product warranties are provided to the Client in the MLPW. No Katalyst agent or employee may modify, extend or add to the MLPW.

13.3 Katalyst shall not in any circumstances whatsoever (whether by reason of negligence, breach of contract, misrepresentation or otherwise) be liable for any economic loss, damage or expense, whether direct, indirect or consequential (including, without prejudice to the generality of the foregoing, loss of profits, business interruption, loss of goodwill or reputation) arising out of or in any way connected with the delivery and/or sale and/or use of the Goods or Service whether by the Client or by any third party.

13.4 The Client hereby warrants that it shall not resell any FRANKD tests supplied by Katalyst.

14. LIABILITY AND CONSEQUENTIAL LOSS

14.1 Katalyst shall not in any circumstances whatsoever (whether by reason of negligence, breach of contract, misrepresentation or otherwise) be liable for any economic loss, damage or expense, whether direct, indirect or consequential (including, without prejudice to the generality of the foregoing, loss of profits, business interruption, loss of goodwill or reputation) arising out of or in any way connected with the delivery and/or sale and/or use of the Goods or Service whether by the Client or by any third party.

14.2 In no event Katalyst shall be liable for any direct, indirect, consequential or incidental damages, including loss of profits, or for any claim by any third party, arising out of the use, the results of use or the inability to use FRANKD by Client.

14.3 Nothing in this paragraph 14 shall be taken to limit or restrict Katalyst’s liability (i) for personal injury or death resulting from the negligence of Katalyst, its employees and agents; or (ii) for fraud or fraudulent misrepresentation or for any other matter for which it would be illegal for Katalyst to exclude, limit or attempt to exclude or limit its liability.

14.4 The total aggregate liability of Katalyst howsoever arising in connection with any Order whether for negligence or breach of contract or otherwise shall in no event exceed the value of the Goods and/or Services sold by Katalyst.

14.5 Client agrees to indemnify and hold Katalyst harmless from and against any claims, costs, expenses, and damage arising out of the abnormal or improper use, misuse or neglect of the Goods or any breach of these terms and conditions or default on the part of the Client.

15. MISCELLANEOUS PROVISIONS

15.1 Publicity and Announcements: From the date of the Accepted Order and unless specifically prohibited in the Accepted Order, then the Client may publicly refer to Katalyst as a supplier and Katalyst may publicly refer to Client as a client.

15.2 Indemnity: The Parties shall fully indemnify and hold each other and the officers, directors and employees of the same harmless from and against any and all claims, damages, liabilities, costs and expenses (including reasonable legal fees and related costs) arising out of the breach of any representation, warranty, agreement or undertaking made by the indemnifying Party in this Agreement.

15.3 Non-Partnership: Nothing contained herein shall be deemed to create, and Katalyst and Client do not intend to create, any relationship of agency or other fiduciary relationship, partnership or joint venture, nor shall any similar relationship be deemed to exist between Katalyst and Client other than the contractual relationship expressly provided in this Agreement. This applies notwithstanding any title that may be given to Katalyst in its performance of the Services.

15.4 Entire Agreement: This Agreement represents the entire understanding, and constitutes the whole agreement, in relation to the subject matter, and supersedes any previous agreement between the parties with respect thereto and without prejudice to the generality of the foregoing excludes any warranty, condition or other undertaking implied at law or by custom. Each Party confirms that, except as provided in this Agreement and without prejudice to any liability for fraudulent misrepresentation, no Party has relied on any representation or warranty or undertaking which is not contained in this Agreement or any document referred to in it or which was made by any other party who is not a party to this Agreement and no Party shall have any remedy in respect of misrepresentation or untrue statement made by any other party unless and to the extent that a claim lies under this Agreement.

15.5 Waiver: A waiver by either party of a breach of any term or condition of this Agreement in any one instance shall be in writing and shall not be deemed as a continuing waiver or a waiver of any subsequent breach unless the written notice so provides.  No failure or delay by any party to exercise its rights under this Agreement shall be deemed a waiver of such rights unless such rights are expressly waived in writing.

15.6  Third Party Rights: The Parties do not intend that any terms of this Agreement should be enforceable, under the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party hereto, nor is any term intended to confer any benefit on any third party (whether referred to herein by name, class, description or otherwise).

15.7 Governing Law and Jurisdiction: This Agreement (including any non-contractual matters and obligations) shall be governed by and construed in accordance with English law and the Parties hereby submit to the exclusive jurisdiction of the English Courts in respect of any dispute arising under or in connection with this Agreement.

SCHEDULE 1 – DEFINITIONS AND INTERPRETATIONS

In this Agreement unless the subject or context otherwise, requires the following expressions shall have the following meanings:

1.  DEFINED TERMS

“Affiliate”shall mean an entity which controls, is controlled by, or is under common control with a party;
“Accepted Order “shall mean any Order Form that describes the proposed sales of Goods and Services that has been approved in writing by Client;
“Client “shall mean the entity described as the Client on the Accepted Order, that has engaged Katalyst to provide the Goods and Services;
“Confidential Information “shall mean, all non-public information, other than Excluded Information,  and data disclosed (whether in writing, orally, or in any form whatever) by or on behalf of the disclosing Party to the receiving Party or any of its representatives, including but not limited to any information or data relating to the business operations, processes, systems, intentions, products, services, methodologies, know-how, intellectual property rights, market opportunities, customers and business affairs of the disclosing Party which is expressly stated to be of a manifestly confidential nature, or which the receiving Party ought reasonably to have known was of a manifestly confidential nature.
“Excluded Information”shall mean information that: (ii)           is or becomes common knowledge other than as a result of the information being disclosed by a breach or non-performance of the Agreement by the receiving Party; or (iii)          was already known to the receiving Party prior to the date of the Agreement; or (iv)          the disclosing Party has agreed in writing is not Confidential Information; or (v)           the receiving Party receives from a third-party who is not in breach of a duty of confidentiality; or (vi)          is required to be disclosed by Law or the valid order of a court of competent jurisdiction, the request or direction of any governmental or other regulatory authority or agency.
“FRANKD”shall mean the FRANKD SARS-CoV-2 test kit manufactured by GeneMe Sp. z o.o..
“Goods “shall mean any goods supplied by Katalyst to the Client as defined in the Accepted Order;
“Katalyst “shall mean Katalyst Communications Limited, a company registered in England and Wales (No. 4693984) whose registered office is at 9 Elettra Avenue, Stratfield Park, Waterlooville, Hants PO7 7XN United Kingdom;
“Manufacturer”shall mean GeneMe Sp. z o.o. ul. Piotrkowska 41c, 80-180 Gdańsk, Poland. https://geneme.eu/
” Order Form “shall mean any Order Form (or other document, as agreed between the parties) that describes the proposed sale of Goods and/or Services from Katalyst to Client.
Service”shall mean any service (such as testing or training) to be delivered by Katalyst as described in the Accepted Order.

2. INTERPRETATION

2.1 In this Agreement where the context admits:

2.1.1   references to “this Agreement” or to any other agreement or document referred to in this Agreement mean this agreement or such other agreement or document as amended, varied, supplemented, modified or novated from time to time (in a form agreed between the Parties), and includes the Schedules;

2.1.2   references to any of the parties include any person who at any time is entitled, by assignment, novation, merger, division, reconstruction, reorganisation or otherwise, to such party’s rights under this Agreement or any interest in those rights, or who, as an insolvency practitioner or otherwise, is entitled to exercise those rights (and, in the case of a novation or similar event, references herein to rights shall include the novated rights to which another person is entitled as a result of that event);

2.1.3   references to “Law” or “Laws” shall include any provision of any treaty, legislation, statute, directive, regulation, judgement, decision, decree, order, instrument, by-law, or any other law of, or having effect in, any applicable jurisdiction and shall be construed also as references to all other Laws made under the Law referred to, and to all such Laws as amended, re-enacted, consolidated or replaced or as their application is modified by other Laws from time to time, and whether before or after the date of this Agreement;

2.1.4   references to Clauses and Schedules are references to clauses of and schedules to this Agreement, references to Paragraphs are, unless otherwise stated, references to paragraphs of the Schedule in which the reference appears;

2.1.5   references to the singular shall include the plural and vice versa and references to the masculine, the feminine and the neuter shall include each other such gender;

2.1.6   “company” includes any body corporate; and

2.1.7   in this Agreement “includes” or “including” shall be interpreted as meaning “includes (or including, as applicable) without limitation” and the use of these words shall not limit the meaning of general words.

2.2  The headings in this Agreement have been inserted for convenience only and shall not affect its construction.

2.3  In the event, and to the extent only, of any conflict between the Clauses and the Schedules, the Clauses shall prevail.

2.4  Each of the schedules shall have effect as if set out in the body of the Agreement.

SCHEDULE 2 – Manufacturer’s Limited Product Warranty as issued by Geneme Sp. z o.o.

This warranty applies to products manufactured by GeneMe where such products have been purchased directly from GeneMe or a GeneMe authorised distributor. Any products coming into the possession of a user via another source are without warranty and should not be used under any circumstances.

GeneMe warrants to the purchaser this product is free from defects in workmanship or materials for a period of 6 months from the date of production, under normal use, provided that the product has been kept in appropriate storage conditions and used in accordance with the instruction of use.  The sole and exclusive remedy under this limited warranty is replacement of defective products or parts thereof. Replacement products or parts thereof will be furnished solely on an exchange basis and are obtainable only by the purchaser. The purchaser shall return the defective product, or part thereof, properly packaged, postage or shipping costs prepaid to GeneMe. Loss or damage during shipment shall be at the risk of the purchaser. Geneme does not give any express or implied warranties or representation on the accuracy levels of the product.

The warranties set out here apply to defects that appear under the conditions of operations provided for by the agreement and in particular do not apply in any of the following cases: (a) the products have been subject of replacement necessitated by accident, neglected, misused, relocation, unauthorized repair or modification of the product; (b) the products have been altered or repaired by anyone other than Geneme without Geneme’s prior written consent; (c) the products have been damaged by circumstances beyond the reasonable control of Geneme; (d) the products have been improperly used or maintained by the purchaser; (e) the products have been subject to conditions of use and/or maintenance not in conformity with Geneme’s instructions; (f) the products have been used by non – professional users; (f) the products have been damaged by: abuse, negligence in use, including using the product in a manner incompatible with the instruction of use, improper storage or transportation or handling.

Subject to the limitations resulting from the mandatory provisions of law Geneme shall not be liable to the third party and the purchaser, its staff or its customers under contract, tort (including negligence) or statute for loss of revenue, loss of profit, loss of opportunity, loss of goodwill, loss of data or the cost of replacement goods and services, or any indirect, consequential or incidental loss.

Geneme shall not be liable for any failure of this warranty if the Geneme’s obligation performance becomes impossible due to a force majeure. Force Majeure means an event out of any Geneme’s control, which occurs unexpectedly, extraordinarily, which makes it impossible to rationally carry out either Geneme’s obligations.

Upon receipt of the product, either directly from GeneMe or GeneMe authorised distributor, the purchaser shall examine it for material and performance defects* and the suitability for the purpose expressly stated in the IFU without undue delay, but not later than 14 calendar days from the date of delivery of the product to the purchaser (when the products have been purchased directly from Geneme) or to the authorized distributor (when the products have been purchased from an authorised distributor). In the situation described above, the purchaser shall give GeneMe (when purchased directly) or authorised distributor (when purchased from authorized distributor) immediate written notice of any defects, within 14 days from the date of delivery, or upon usage of a maximum of five percent of the delivery whichever is first. After this 14-days period, notification of any defects shall be within 14 days from the date of identification of such defects by the purchaser, and shall be precisely specify the type and extent of the defect in writing and shall include comprehensive details of any product transportation, product LOT number, run files from any PCR machine used, and a full, detailed and verifiable description of storage conditions and any variations of those conditions. Any such notices of defects must be received by GeneMe (when purchased directly) or by GeneMe authorised distributor (when purchased from authorised distributor) within the warranty period.

THE ABOVE LIMITED WARRANTY IS THE SOLE WARRANTY PROVIDED BY GENEME. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE PROVIDED WHATSOEVER. NO GENEME AGENT OR EMPLOYEE MAY MODIFY, EXTEND OR ADD TO THE ABOVE LIMITED WARRANTY. NOTHING IN THIS WARRANTY SHALL OPERATE TO EXCLUDE OR LIMIT A GENEME’S LIABILITY FOR FRAUD OR FRAUDULENT MISREPRESENTATION.

This Agreement contains the entire agreement between Geneme and the purchaser relating to the product’s warranty. This warranty shall be interpreted in accordance with Polish Law.

SCHEDULE 3 – YOTI END USER LICENCE AGREEMENT

1.  YOTI END USER LICENCE AGREEMENT

1.1  In using either the Web Application or the Yoti application to store Test Result Credentials the Client is deemed to accept the terms of this EULA.  The Client may not use the Digital Identity Services if the Client does not agree to be bound by the terms of this EULA.

In this EULA the following words have the following meaning:

“Client”means the entity which has agreed to purchase FRANKD from Katalyst along with the Digital Identity Services;
“Digital Identity Services”means: (a) the storage, share and display of Testing Result Credentials on the Yoti application by testing subjects tested by the Client using the Testing Kits; and/or (b) the supply of the Web Application;
“EULA”means this End User Licence Agreement.
“Katalyst”means Katalyst Communications Ltd a company registered in England and Wales (No. 4693984) whose registered office is at 9 Elettra Avenue, Stratfield Park, Waterlooville, Hants PO7 7XN United Kingdom;
“Manufacturer”means Geneme Sp. z o.o. a company registered in Poland and its address at Piotrkowska 41C, 80-180, Gdansk, Poland;
“Software”means any SDK or API provided by Yoti for an integration of the Yoti system with the Client;
“FRANKD”means the testing kits for Covid-19 sold by Manufacturer;
“Test Result Credential”means the credentials held on the Yoti application showing the Testing Results;
Web Application”means the interface that allows FRANKD to be processed and shared with the test subjects either through the Yoti application or another means.
“Yoti”means Yoti Limited, a company registered in England and Wales under company number 08998951 with its address at Fountain House, 130 Fenchurch St, London, EC3M 5DJ

1.2 The Client may choose to receive verified identity attributes (e.g. name and phone number) from test subjects via the Yoti application. Yoti will use its reasonable skill and care in verifying or authenticating identity attributes from test subjects, but will have no liability to the Client, and hereby disclaims to the fullest extent possible under applicable laws all implied representations, warranties, conditions and terms in respect of the accuracy of any identity attributes, whether verified by Yoti or not; all identity attributes are acquired and used by the Client at its own risk.

1.3 Yoti receives Test Result Credentials from the results of FRANKD. Yoti does not provide or operate FRANKD and is not liable to the Client for the performance or operation of FRANKD or the accuracy or reliability of the Testing Result Credential.

1.4 The Client must not require a testing subject to use the Yoti application to receive Test Result Credentials but must offer an alternative method as provided for in the Web Application.

1.5 If the Client is integrating the Software then Yoti shall provide a reasonable level of technical integration support but reserves the right to charge for support if it goes beyond the level that Yoti considers is reasonable.

1.6 Except with the prior written consent of Yoti the Client may not resell, sublicense, lease, share, transfer, make representations about or otherwise make available any identity attributes, Test Result Credentials, Yoti timestamped data or any information gleaned from the foregoing to any third party or as part of any joint venture or partnership with any third party.

1.7 In relation to the Client’s use of the Yoti application, the Web Application and the Software, either during the term of this EULA or at any time afterwards, the Client must:

1.7.1 only use them in compliance with all applicable laws;

1.7.2 only use them for proper and lawful business purposes and otherwise in accordance with this EULA;

1.7.3     only make backup copies of them for lawful use;

1.7.4     take all reasonable steps to prevent unauthorised copying of them;

1.7.5     not modify, copy, adapt, translate or create derivative works based on them;

1.7.6     not attempt to discover any source code or underlying ideas or algorithms or reverse engineer, decompile or disassemble them for any purpose;

1.7.7     not attempt to gain, or gain, unauthorised access to, or disrupt the integrity or performance of them or the Test Result Credentials;

1.7.8     not use them to commit, or with the intention to commit, any unlawful, fraudulent, dishonest, threatening, invasive or improper behaviour;

1.7.9     not and is not permitted to sub-license, assign, hold on trust or novate this EULA to or on behalf of any person;

1.7.10   provide all cooperation and information reasonably required by Yoti in relation to them, including all information and materials reasonably required by Yoti to make the Digital Identity Services available to the Client. The Client must ensure that such information is up-to-date and accurate in all material respects;

1.7.11   not provide a service which is the same as or similar to them, or use them to build a competitive product or service or copy its features, technology or user interface; and

1.7.12   not act or omit to act in any way that results in damage to Yoti’s business or reputation.

1.8  If shared with the Client using the Yoti application, the Client must only use identity attributes and Test Result Credentials for its lawful purposes and in accordance with its data protection responsibilities to the test subject.

1.9 The supply of the Yoti application and the Web Application is “as is” and “as available” and Yoti makes no guarantee of uptime or that the Yoti application or the Web Application will perform error free or that the Yoti application or the Web Application were designed for the Client’s requirements.

1.10 Subject to Yoti’s obligations in clause 1.17, Yoti hereby disclaims all warranties, representations, conditions and implied terms that the Yoti application or Web Application is fit for the Client’s purpose, is suitable for the Client’s industry or is legal under applicable laws that apply to the Client.

1.11 Yoti is not liable under contract, tort (including negligence) or statute to the Client for any of the following loss or damages:

1.11.1   loss of revenue, business or opportunity;

1.11.2   loss of profits;

1.11.3   replacement goods cost;

1.11.4   loss of data;

1.11.5   loss of goodwill or reputation; or

1.11.6   any indirect, consequential or incidental loss.

1.12 The maximum aggregate liability of Yoti to the Client, any of the Client’s affiliates, group companies or customers, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise shall be capped at the lower of:

1.12.1   £1,000; and

1.12.2   a sum equal to 125% of the fees actually paid by the Client for FRANKD in the previous 12 months.

1.13 Because the Yoti application is entirely ‘self-serve’ by users Yoti is not liable to the Client if a Yoti user decides to delete their Yoti application or any credentials stored in the Yoti application.

1.14 The Client shall itself revoke, or require Katalyst or Yoti to revoke, any Testing Result Credentials in the Yoti application if it has actual or constructive knowledge that the Testing Result Credentials are no longer accurate or correct.

1.15 Nothing in this EULA shall limit or exclude the liability of Yoti for fraud, fraudulent misrepresentation, death or personal injury caused by Yoti’s negligence or any head of loss that may not be limited by applicable law.

1.16 If any term of this EULA 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 section shall not affect the validity and enforceability of the rest of the EULA.

1.17 Yoti shall comply with the terms of the Data Protection Annex in its processing of Personal Data (defined in the Data Protection Annex) of users who the Clients asks to undertake a FRANKD test. The Personal Data collected includes name, contact details and FRANKD test results. The purpose of the data processing is for the Client to receive FRANKD test results in an electronic format.

1.18 If the Client breaches any of its obligations in this EULA or Yoti is no longer contracted to provide the Digital Identity Services to Katalyst, then Yoti may:

1.18.1   immediately stop providing the Digital Identity Service to the Client; and/or

1.18.2   require the Client to stop:

(A)              using the Web Application;

(B)               issuing Test Result Credentials onto the Yoti application; and

(C)               receiving the Digital Identity Services.

1.19 Yoti owns and shall continue to own all intellectual property rights in the Yoti application, Web Application, the Software, identity attributes and Testing Result Credentials stored on the Yoti application. Yoti shall own all intellectual property rights in any modifications, improvements or amendments to the foregoing even if made for the Client or at the Client’s suggestion.

1.20 This EULA is the entire agreement between the parties for the use of the Yoti application, the Web Application and storage by Yoti of the Test Result Credentials. Neither party has relied on any prior agreement, document or representation (including innocent and negligent misrepresentations) in entering into this EULA. Nothing in this clause shall operate to exclude or limit a party’s liability for fraud or fraudulent misrepresentation.

1.21 Unless specifically prohibited on the Katalyst order form, Yoti may publicise the Client’s use of the Yoti application in any marketing and publicity materials and may use the Clients’ name and logo in good faith and accurately for this purpose.

1.22 This EULA, and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by, and construed in accordance with the laws of England and 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 EULA or the Client’s use of the Digital Identity Services.

Data Processing Annex

In this Annex: “Privacy Laws” means the General Data Protection Regulation 2016 and the Data Protection Act 2018, and other applicable and equivalent local data protection laws, and “Data Controller”, “Data Processor” and “Personal Data” have the meaning given in the Privacy Laws.

1. Yoti shall, as a Data Processor:

1.1 only use the Personal Data for the legitimate purposes of performing its obligations under this EULA and for no other purposes unless instructed to do so by the Client;

1.2 act only on written lawful and reasonable instructions from the Client in relation to the Personal Data;

1.3 comply with all the relevant requirements of the Privacy Laws;

1.4 not sub-contract the processing of any of the Personal Data to any third party without the Client’s prior consent. The Client agrees that Yoti may use AWS (UK instances) as a sub-processor;

1.5 ensure that appropriate technical and organisational security measures are in place against unauthorised or unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, the Personal Data in accordance with the Privacy Laws;

1.6 take reasonable steps to ensure the reliability of any of its employees, agents and contractors who have access to the Personal Data;

1.7 only transfer Personal Data outside of the European Economic Area in compliance with Privacy Laws;

1.8 assist the Client with an Individual’s rights request to the extent Yoti can;

1.9 either delete Personal Data as soon as the relevant service is provided, or provide the Client with the ability to export or delete the Personal Data;

1.10 reasonably demonstrate compliance with this Annex on request by the Client; and

1.11 inform the Client promptly on becoming aware of a breach of security in relation to the Client’s Personal Data.

1.12 Yoti shall use its reasonable endeavours to assist, as needed and as far as it technically can, the Client to demonstrate its compliance with its obligations under Privacy Laws (in connection to this EULA) relating to:

(A)              security;

(B)               breach notifications;

(C)               data protection impact assessments; and     

(D)              prior consultation.

Revised 26.10.20