--- title: UK Premium date: 2024-07-09T13:54:00+02:00 author: Gozde canonical_url: "https://legal.choco.com/ukpremium" section: Pages --- Latest version Effective 1 October 2024 Effective 1 November 2023 Effective 16 September 2022 ## Main Services Agreement Effective 23 October 2025 **Preamble** Choco Communications UK Limited (“**Choco**”) operates a cloud-based order management and communication platform for distributors (e.g., wholesalers) and their customers (e.g., restaurants) in the food industry ("**Cloud Service**") and provides related Onboarding and Support Services as well as Integration Services (collectively “**Implementation Services**” and, together with the Cloud Service, each a “**Service**” and collectively the “**Services**”). A description of each Service is available[ here](https://legal.choco.com/ukpremium#services), as may be updated by Choco from time to time. This Main Services Agreement (“**Agreement**”) governs the provision and use of the Services. Distributor agrees to be bound by the Agreement by executing an Order Form referencing the Agreement, by accessing and/or making use of the Free Services (as defined in section 1.3 below) or by otherwise indicating its acceptance of this Agreement. Capitalised terms not otherwise defined below shall have the meaning assigned to them elsewhere in the Agreement. By accepting this Agreement, you acknowledge and agree that (1) you are entering into this Agreement on behalf of the distributor identified in the Order Form or the entity on whose behalf you are acting (“**Distributor**”); and (2) you have full power and authority to bind the Distributor to the terms and conditions of this Agreement. THEREFORE, in consideration of the foregoing, Choco and Distributor (each a "**Party**" and collectively the "**Parties**") agree as follows: **1 Scope of the Services** **1.1 Access to Cloud Service.** Distributor may subscribe to the Cloud Services by executing an order form (“**Order Form**”). Subject to Distributor’s payment of Subscription Fees, Choco hereby grants Distributor a non-exclusive, non-transferable, non-sublicensable right to access and use the Cloud Service during the period for which Distributor subscribed to a Cloud Service (“**Subscription Term**”), solely for its own business operations and in accordance with the terms and conditions of the Agreement. Distributor’s license is limited to the separately licensable components of the Cloud Service as identified in the applicable Order Form, optional add-ons are not included unless they are specifically mentioned. Distributor is responsible for arranging the necessary equipment and the internet connection to use the Cloud Service. Distributor will have no right to any specific design or specific functionalities beyond the scope of the Cloud Service agreed in the Order Form. **1.2 Implementation Services.** Choco will provide Implementation Services as agreed in the Order Form or as otherwise agreed in writing between the Parties. Any optional add-ons or premium tiers are not included unless expressly agreed in writing. Implementation Services are performed remotely and on-site services are not included unless expressly agreed in writing. If on-site services are agreed, Distributor shall reimburse Choco for all reasonable travel costs and expenses. Distributor shall appoint a project manager who will attend all the meetings and complete or arrange for completion of all Distributor activities as outlined in the project plan. **1.3 Free Services.** Choco may offer certain features of the Cloud Service free of charge, such as trial periods, proof of concept, beta versions or delivery of orders from the restaurants using the Cloud Service in a digital form (“**Free Services**”). An entity benefiting from Free Services shall be deemed to constitute a Distributor and shall be subject to the terms of the Agreement governing use of the Cloud Service as long as it benefits from Free Services. Distributor acknowledges that Choco reserves the right to modify or terminate Distributor’s access to Free Services or any part thereof, at any time and for any reason in its sole discretion without any notice or liability to Distributor. Free Services are provided as-is and, to the maximum extent permitted by applicable law, Choco shall not be liable for any damages, costs or expenses resulting from the use of Free Services. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’ (as defined in section 12.3 below)) aggregate liability shall be limited to £1,000 (one thousand pounds). In the event of a conflict between this section 1.3 and the rest of the Agreement, this section 1.3 shall take precedence. **1.4 Service Specific Terms.** Some Services may be subject to additional terms specific to that Service, such as[ Integration GTCs](https://legal.choco.com/ukpremium#integration) and[ White-Label TCs](https://legal.choco.com/ukpremium#wl) (“**Service Specific Terms**”). To the extent such Services are provided to Distributor, the applicable Service Specific Terms are incorporated into this Agreement by reference. Distributor agrees to be bound by the applicable Service Specific Terms by signing the Order Form or by accessing or using the Services covered by Service Specific Terms. **1.5 Availability.** Choco will make commercially reasonable efforts to make the Cloud Service available 98% of the time, based on a monthly average. Excluded therefrom are necessary planned maintenance work as well as unavailability caused by factors that are outside of Choco’s reasonable control (such as force majeure events, downtime that results from Distributor’s or a third party’s equipment or software , or internet connectivity issues). If possible, Choco shall in a timely manner notify Distributor about planned maintenance work. Nevertheless, Choco expressly reserves the right to carry out unannounced maintenance work if necessary, particularly where this is required for data and operational security. **1.6 Modifications.** Choco reserves the right to enhance, change or discontinue features of the Cloud Service or introduce new features or Services that may be subject to additional fees at any time. If any changes materially limit the features of the Cloud Service that Distributor subscribed to,Choco shall provide Distributor with advanced notice thereof. Distributor's continued use of the Cloud Service after being notified constitutes acceptance of those changes. In case of a timely objection by Distributor, Parties may agree on a reasonable remedy, or either Party may terminate the Agreement and Choco will refund the Distributor any pre-paid Fees on a pro-rata basis for the remainder of the Subscription Term. **1.7 AI-powered Services.** The Cloud Service may encompass functionalities that are powered by artificial intelligence (“**AI**”). Distributor will retain ownership over the input it provides and the output generated by AI based on the input, both of which shall constitute Distributor Data (as defined in section 3.1 below). Choco does not guarantee the accuracy, completeness and reliability of the output generated by AI and, to the extent permitted by law, disclaims all warranties and liability for such output. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’) aggregate liability shall be limited to £1,000 (one thousand pounds). Output generated by AI may not be unique to Distributor and it does not represent Choco’s views. Distributor undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities. In the event of a conflict between this section 1.7 and the rest of the Agreement, this section 1.7 shall take precedence. **1.8 Third Party Services.** Choco may make some ancillary services or add-ons that are offered by third parties (“**Third Party Services**”) available on the Cloud Service, subject to the specific terms and conditions of the third party service provider. Distributor will need to enter into a separate contractual relationship with the relevant third party service provider to be able make use of such Third Party Services and acknowledges that a third-party service provider may refuse to enter into an agreement with Distributor at its own discretion. Choco may have access to certain Distributor information included these Third-Party Services to facilitate communication and enable their provision, and will treat such information as Distributor Data. Choco does not control the Third-Party Services and is not responsible, directly or indirectly, for any damage or loss resulting from the use of or reliance on these Third-Party Services. Any interactions Distributor has with the third party service provider are solely between Distributor and the third party service provider, and Choco assumes no liability for any issues arising from the Distributor’s agreements or dealings with these third party service providers. For the avoidance of doubt, Third Party Services will not be considered as the Services as defined under this Agreement and will not be subject to the Agreement. Distributor shall be fully responsible for its use of the Third Party Services and shall indemnify Choco against any third-party claims, fines, and costs (including legal fees) arising from Distributor’s breach of its agreement with the third party service provider, applicable laws and regulations (such as scheme rules). **2 Access and Use of Cloud Service** **2.1 Authorised Users.** The licence granted to Distributor is limited to its employees, agents or contractors who are authorised by Distributor to use the Services (“**Authorised Users**”). Distributor is responsible for its Authorised Users’ compliance with the Agreement, including Choco’s policies on the use of the Cloud Service and for all of their acts and omissions. Each user account (or seat) is personal to the designated Authorised User and may not be shared with any other individual. Distributor shall ensure that its Authorised Users keep the access data of their accounts confidential and shall inform Choco without undue delay if there is any suspicion that the access data may have become known to unauthorised persons. Distributor is solely responsible for all activities that occur under the accounts of its Authorised Users. **2.2 Use Restrictions.** Distributor shall not (a) reproduce, copy, modify, adapt, create derivative works, reverse engineer, decompile or engage in any action with the attempt to obtain the source code of the Cloud Service (except as permitted by mandatory law); (b) sublicense, sell, rent, distribute, transfer or provide a third party access to the Cloud Service or otherwise allow the use of the Cloud Service for the benefit of any third party; (c) engage in any conduct that interferes with or threatens the security, integrity or performance of the Cloud Service, including any related systems; (d) send any malicious code (e.g., viruses, worms, Trojan horses or other malware) through Cloud Service; (e) attempt to interfere with or otherwise circumvent any security measures, authentication mechanisms, any functional restrictions applicable usage allowance; (f) use the Cloud Service in order to build a product or service which competes with the Cloud Service; (g) use any software, devices, robots or any other means to scrape data from the Cloud Service; (h) use the Cloud Service for fraudulent purposes; (i) make unfair use of the Cloud Service or (j) use the Cloud Service to send unsolicited commercial communications. If the Cloud Service allows Distributor to modify a Customer’s order or place orders on a Customer’s behalf, Distributor agrees to do so only with the clear instructions or explicit consent of the relevant Customer. **2.3 The relationship with the Customers.** Distributor is solely responsible for its use of the Services, such as for the contact it establishes with other companies, all communications sent via or in connection with the Cloud Service, the content and availability of the products and for the proper management of orders. By making the Cloud Service available, Choco merely provides the infrastructure for placing and managing orders and for communication. Choco itself will not directly or indirectly become a party to the relationship between Distributor and the restaurants or other market participants who place orders with Distributor (“**Customer(s)**”). Each order (individual sale and purchase of products) shall be concluded solely between Distributor and the relevant Customer. Choco will have no liability whatsoever with regard to the performance of those orders and shall not be a party to disputes of any kind between Distributor and its Customers (such as disputes relating to incorrect deliveries or late payments). Distributor is solely responsible for the proper management of orders, and for its relationship and communication with its Customers and with any other third parties that it may engage with using the Cloud Service. **2.4 Support and Maintenance**: Choco shall offer standard support services to assist Distributor in using the Cloud Service during regular working hours. Choco will also provide maintenance services at its own discretion, including error corrections, updates, and upgrades, as deemed necessary to ensure the Cloud Service's continued functionality. Support and maintenance do not cover issues resulting from Distributor’s misuse, unauthorised modifications or third-party systems. **3 Distributor Data and Responsibilities** **3.1 Distributor Data.** Distributor shall retain all right, title and interest in and to information, images, texts, data, files, Distributor Deliverables and other materials that are transmitted or submitted by or on behalf of Distributor to Choco in the course of Distributor's access and use the Services ("**Distributor Data**"). Distributor shall solely be responsible for the Distributor Data and shall ensure its accuracy, integrity and reliability throughout the term of the Agreement. Distributor grants Choco a non-exclusive, royalty-free, perpetual and worldwide licence to collect, process, reproduce, modify, host, store, disclose, display and perform all necessary acts on the Distributor Data for the purposes of operating the Cloud Service and providing the Services to Distributor. Distributor agrees that Choco may collect, analyze and use information about Distributor’s use of the Services (“**Usage Data**”) and Distributor Data internally for research, security, analytics purposes and for improving its Services. Choco shall be entitled to create aggregated and/or de-identified information derived from User Data and Distributor Data and use such information at its own discretion without being subject to any limitations, to the extent it does not identify Distributor, its Customers or any person. Choco may sublicense or transfer the rights granted herein to its Vicarious Agents. **3.2 Distributor’s Warranties.** Distributor agrees and warrants that (i) it will use the Services only for offering products that address food and hotel industry needs; (ii) it will comply with all laws applicable to its access and use of the Cloud Service, including but not limited to laws applicable to communications sent through the Cloud Service; (iii) it owns or will obtain the necessary rights and permissions to share the Distributor Data with Choco and to authorise the use of the Distributor Data by Choco as contemplated in this Agreement; (iv) it will provide the required information notices and obtain necessary consents under data protection laws for lawfully transferring data to Choco and enabling Choco to lawfully collect and process Distributor Data for the provision of the Services, as further described under the Data Processing Agreement; (v) it will comply with laws applicable to communications sent through the Cloud Service, including but not limited to those relating to obtaining consent (if necessary) and complying with opt-out requests; (vi) the Distributor Data and its use by Choco as contemplated in this Agreement do not violate any third-party rights or applicable laws; and (vii) the Distributor Data will not include any illegal, defamatory, inappropriate, offensive, hateful or violent content. **3.3 Removal.** Choco is not obliged to monitor the Distributor Data but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Distributor Data (including the products offered via the Cloud Service) if (i) it violates the Agreement including Choco policies made available to Distributor, (ii) it constitutes illegal content such as illegal hate speech, terrorist content, unlawful discriminatory content, or any content that the applicable laws render illegal or (iii) it is likely to give rise to complaints by third parties or other Choco customers. Due account of the fundamental rights and freedoms and legitimate interests of all parties involved will be taken when making decisions about removal of the Distributor Data. Choco will comply with binding orders of courts and supervisory authorities to remove any illegal Distributor Data from the Cloud Service. **3.4 Backup.** Choco will use commercially reasonable efforts to ensure integrity and availability of the Distributor Data. Notwithstanding the foregoing Distributor shall be solely responsible for the Distributor Data and shall take back-ups on a regular basis and commensurately with the risk. **3.5 Distributor Indemnity.** Distributor shall indemnify and hold Choco, its employees, representatives and Vicarious Agents harmless from and against any claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) asserted against them by a third party arising out of (i) Distributor's (including its Authorised Users’) use of the Services in breach of the Agreement, (ii) the Distributor Data, (iii) performance of orders submitted to the Distributor, or (iv) Distributor’s (including its Authorised Users’) violation of applicable laws. Choco shall notify Distributor without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defence. Moreover, Choco at its own discretion will either surrender the right of defence to Distributor or undertake such defence in consultation with Distributor. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with Distributor, except where Distributor has not responded to Choco's notification of the claim within a reasonable time period. **3.6 Cooperation.** Distributor acknowledges that Choco’s performance of the Services is subject to the Distributor’s timely cooperation and the timely provision of all information reasonably required by Choco. Distributor shall cooperate with Choco in good faith and provide all necessary information as reasonably required by Choco for the proper performance of the Services in a timely manner. All information provided by Distributor shall be up-to-date, complete, and accurate, and Distributor shall notify Choco in writing in case of any changes. Choco will not be liable for any delays in the provision of the Services caused by Distributor’s failure to provide Choco with the required information or cooperation. **4 Fees and Payment** **4.1 Fees.** Distributor shall pay Choco the fees agreed to in the Order Form or otherwise in writing for the provision of the Services (the “**Fees**”). Unless expressly agreed otherwise in the Order Form, the Fees consist of (i) a recurring license fee for the use of the Cloud Service (“**Subscription Fee**”), payable for the duration of the Subscription Term, and (ii) fees for the Implementation Services (“**Implementation Fee**”). Except otherwise specifically agreed in the Agreement, the Fees are non-refundable. If any Fees are calculated based on the number of active Customers, a Customer shall be deemed an Active Customer if it has placed at least one order with the Distributor using the Cloud Service during the relevant calendar month (“**Active Customer**”). **4.2 Invoicing and Payment.** Distributor shall pay the applicable Fees pursuant to the billing and payment terms set out in the Order Form. Invoices will be issued at the beginning of the agreed payment interval and unless expressly agreed otherwise in the Order Form, all invoiced amounts shall be due within two weeks of the date on the invoice. Choco’s default payment method is direct debit however Choco may, at its discretion, accept alternative payment methods, including credit card or any other methods it deems acceptable. In case of late payment, Choco reserves the right to suspend access to the Services until such amounts are paid in full, and charge interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate but at the rate of 4% per annum for any period during which that base rate is below 0% (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date to the date of actual payment. By providing direct debit and/or credit card information, Distributor authorizes Choco to charge the applicable payment method for all Fees as they become due under this Agreement. **4.3 Taxes.** The Fees are exclusive of taxes and Distributor shall be responsible for the taxes associated with the purchase of the Services. The applicable value added tax or other applicable taxes will be charged at the statutory rate to Distributor. **4.4 Discounts.** Unless otherwise specified in the Order Form, any discounts are valid only for the relevant Subscription Term in which they are provided and do not automatically extend or apply to subsequent terms, renewals, or extensions. **4.5 Usage Allowance and Fee Adjustment.** Distributor’s subscription may be subject to usage allowance (such as per number of seats, order volumes, or plan level) set out in the applicable Order Form, which represents the maximum capacity Distributor is allowed to use. Choco may monitor Distributor’s use of the Services. If Distributor exceeds the applicable usage allowance, Choco will notify and work with Distributor to seek to reduce Distributor’s usage so that it conforms to agreed allowance. If it’s not possible to reduce Distributor’s usage, Choco may adjust Distributor’s subscription to reflect Distributor’s actual usage for the remainder of the term. Once adjusted Subscription Fee may not be decreased until the end of the then current Subscription Term, even if there is a subsequent reduction in the scope of use. If Distributor repeatedly exceeds the applicable usage allowance, Choco reserves the right to charge for past excess usage in accordance with Choco’s then-current list pricing. **5 Intellectual Property** **5.1 Reservation of Rights.** Distributor acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Cloud Service and in any improvements or modifications to the foregoing, , and in any deliverables that Choco may create specifically for Distributor. Choco grants Distributor a limited license on those deliverables on a non-exclusive basis, limited with the term and purpose of the Agreement. Distributor does not have any rights in or to the Cloud Service and deliverables Choco may create, except for the limited express rights granted in this Agreement. The term Cloud Service includes any systems, programs, application programming interfaces and Integrations developed by or on behalf of Choco. In addition, Choco reserves all right, title, interest and ownership over aggregated and/or de-identified information derived from User Data and Customer Data. **5.2 Feedback.** Distributor allows Choco to use, copy, disclose and exploit any suggestions and other feedback provided by Distributor and its Authorised Users freely in order to improve and enhance the Services and for development of other services in any manner without any obligation, royalty, attribution or restriction based on intellectual property rights or otherwise. **5.3 Trademark License.** Distributor grants Choco a non-exclusive, worldwide licence to use Distributor's trademarks for operating the Cloud Service and for the performance of the Agreement. Choco shall be specifically entitled to display the trademark on Distributor's Distributor profile and to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Agreement. Otherwise, the right of use may not be transferred or assigned. **5.4 Customer Reference.** Choco may use Distributor’s name and logo in its marketing materials, presentations and similar communications to refer to Distributor as a customer. Distributor may revoke this consent any time by giving prior written notice. **6 Confidentiality** **6.1 Duty of Confidentiality.** The Parties undertake to keep confidential any information and documents of the disclosing party, which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets ("**Confidential Information**") and to use them exclusively for the purposes allowed under this Agreement. The technical components, documentation and the source code of the Cloud Service and the terms of the Order Form shall be considered as Confidential Information of Choco. The receiving party shall undertake reasonable technical and organisational measures to protect Confidential Information. **6.2 Disclosure of Confidential Information.** The receiving party is entitled to disclose Confidential Information of the disclosing party solely (i) to its employees, Vicarious Agents, contractors or consultants on a need to know basis for the performance of this Agreement, provided that they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) where required by law, (iv) to third parties upon prior written approval of the disclosing party. "Affiliates" (meaning, in relation to a party, any: (i) subsidiary or holding company of that party; (ii) body corporate with an ultimate holding company in common with that party; and (iii) officer of that party or of such subsidiary, holding company or body corporate, and “subsidiary”, “holding company”, “body corporate” and “officer” shall have the meanings set out in sections 1159 and 1173 respectively of the Companies Act 2006) of the receiving party shall not be considered third parties and the receiving party may freely disclose Confidential Information to its Affiliates. When requests are made by judicial or administrative authorities relating to the disclosure of Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law. **6.3 Exclusions from Confidentiality.** Confidential Information does not include information that (i) was already known to the receiving party prior to disclosure, (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was brought to the attention of or shared with the receiving party by a bona fide third party authorised to do so. **6.4 Duration of Confidentiality**. The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Agreement. In addition, the duty of confidentiality shall remain in place for a period of three (3) years after cessation of the Agreement, unless statutory provisions provide for a longer confidentiality obligation. **7 Data Protection** 7.1 With regard to the personal data that Choco processes on behalf of Distributor for provision of the Services under this Agreement, the Parties conclude a Data Processing Agreement available here ("**DPA**") and which is hereby incorporated by reference into this Agreement. **8 Suspension** **8.1 Suspension.** Choco is entitled, but not obliged, to monitor Distributor’s and its Authorised Users’ use of the Services and may suspend Distributor's or its any of its Authorised Users’ access to the Cloud Service (i) if Choco reasonably believes a violation of the Agreement has occurred, (ii) if the suspension is necessary for technical or security reasons or to avert imminent damage to Choco, Distributor or third parties or (iii) if Choco is obliged to suspend access by law. Choco will use commercially reasonable efforts to provide advance notice of suspension, unless prohibited by law. Choco shall lift the suspension if the reason for the suspension no longer exists. Choco will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Distributor may incur as a result of a suspension triggered by its Authorised Users’ own acts or omissions. **9 Term and Termination** **9.1 Term.** The Agreement commences on the date Distributor first accepts it and remains in effect until the termination or expiration of the last Order Form in line with this Agreement. The Parties may execute multiple Order Forms under this Agreement, and any such subsequent Order Forms shall be governed by this Agreement without altering its date of entry into force. **9.2 Subscription Term.** The Subscription Term and its start date shall be as specified in the applicable Order Form. Subscription Term shall automatically renew for successive periods of 12-month terms, unless either Party gives the other at least three (3) months' prior written notice of non-renewal before the end of the respective Subscription Term. Choco may update the terms of this Agreement, including the applicable Fees, by providing reasonable notice to the Distributor prior to the start of any renewal term in order to reflect changes in market condition. If such changes are notified to Distributor less than three (3) months before the renewal date, the Distributor may choose not to renew the Agreement without penalty. **9.3 Termination for Cause.** Without prejudice to any other rights or remedies, either Party may, by written notice to the other, terminate the Agreement, or any Order Form, with immediate effect on the happening of any of the following events: (i) the other Party commits a material breach of the Agreement which is incapable of remedy; or (ii) the other Party commits a material breach of the Agreement which is capable of remedy and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach. This clause shall not apply to breach of limited warranty provided by Choco as per section 10 and the exclusive remedies of Distributor are listed therein. **9.4 Termination by Choco.** For the purpose of section 9.3(i) above a material breach by Distributor will be deemed incapable of remedy if (i) Distributor has repeatedly used the Services to place Distributor Data or products that are not permissible under the Agreement; (ii) Distributor is in default of its payment obligations for longer than two (2) weeks; (iii) Distributor becomes insolvent, files for or has filed against it, a petition of bankruptcy or; (iv) Distributor has acted against the use restrictions set out in section 2.2 above. **9.5 Effects of Termination.** If an Agreement, including any Order Form, is terminated by Distributor in accordance with the “Termination for Cause” section above, Choco will refund Distributor any prepaid Fees covering the period after the effective date of the termination. Except in the case of a termination for cause by Distributor, upon termination any unpaid Fees covering the remainder of the term will become immediately due and payable**.** Distributor shall lose its access to the Services, with the exception of the Free Services which may be still provided to the Distributor at Choco’s sole discretion. After termination, Choco will have no obligation to Distributor to continue storing Distributor Data and will delete the Distributor Data in its systems upon Distributor’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Distributor Data if Choco is obliged to do so by law or to the extent that the Distributor Data is required for accounting and documentation purposes or for the operation of the Cloud Service. **9.6 Survival.** The sections 1.3 (Free Services), 3.5 (Distributor Indemnity), 4 (Fees and Payment), 6 (Confidentiality), 9.5 (Effects of Termination) and 11 (Limitation of Liability) and others which by their nature are intended to survive, shall survive after termination or expiration of this Agreement. **10 Warranty** **10.1 Limited Warranty.** Choco provides a limited warranty against defects in the Services. A defect is deemed to exist in case of any significant deviations from the functional scope of the Services as described in the Agreement that render the use of the Service impossible or greatly restricted. Distributor shall without undue delay notify Choco in writing of any defect and provide all information that is available to Distributor and is necessary for Choco to identify, reproduce, analyse and remedy the defect. Furthermore, Distributor shall assist Choco in remedying defects free of charge and in a reasonable manner. Choco will either rectify the defect or deliver the impacted Service once again at its discretion and within a reasonable period of time upon receiving written notification of the defect. The provision of instructions for use, with which Distributor can reasonably workaround the defects, will also be deemed to be a remedy of defects. If Choco determines it cannot correct the defect, Parties may agree on a reasonable discount on the affected service, or either Party may terminate the Agreement for the affected Services and Choco will refund any prepaid Fees on a pro-rata basis for the remainder of the Subscription Term.This limited warranty does not apply (i) to any defects caused by unauthorised use, abuse, negligence or equipment of Distributor, (ii) to any defects not notified by Distributor within 30 days upon noticing the defect. Choco's sole responsibility and Distributor's sole exclusive remedies against defects are set out in this section. **10.2 Limitation period.** All claims by Distributor shall become time barred upon elapse of the earlier of the statutory limitation period, or a period of twelve (12) months from Distributor becoming aware of the fact or event giving rise to the cause of action. **10.3 Disclaimer of Warranty.** Except as expressly provided herein and to the maximum extent permitted by applicable law, the Services are provided as-is and on an as available basis. Choco hereby disclaims all warranties of any kind, whether express or implied by statute or common law, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or non-infringement. Choco does not warrant that all errors can be corrected, or that operation of the Services shall be uninterrupted or error-free, nor does Choco guarantee any specific results in connection with use of the Services. **11 Limitation of Liability** **11.1 Limitation of Liability.** Choco’s (including any representatives’, employees’, agents’, and Vicarious Agents’) full and aggregated liability for any and all damages arising out of or in connection with this Agreement (whether such liability arises from contract, tort (including negligence), misrepresentation, breach of any duty (including strict liability) or otherwise), shall be limited to the Fees paid by Distributor during the last 12 months preceding the last event giving rise to liability. In cases of ordinary negligence, Choco shall be liable when there has been a breach of a material contractual duty. A material contractual duty within the meaning of this section is an obligation the fulfilment of which makes the performance of the Contract even possible in the first place. **11.2 Disclaimer of Consequential and Related Damages.** Choco (and any representatives, employees, agents, and Vicarious Agents) shall only be liable for direct and foreseeable damages at the time of the conclusion of the Agreement and shall not be liable for incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, loss of data, damage to reputation, costs of delay or procurement of substitute services, any business interruption, even if Choco has been advised of the possibility of such damages. **11.3 Exclusions from Limitation of Liability.** The limitations on liability set out in this section shall not apply for losses caused by death or personal injury caused by its negligence, or the negligence of its personnel, agents, Vicarious Agents, fraud or fraudulent misrepresentation; and any other liability which cannot be limited or excluded by applicable law. **12 Final Provisions** **12.1 Force Majeure.** Choco shall have no liability to the Distributor under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Choco or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of vendors or sub-contractors, provided that the Distributor is notified of such an event and its expected duration. **12.2 Amendments.** Choco may amend this Agreement with effect for the future. Any amendments and side agreements to this Agreement must be made in writing. In case of minor or cosmetic amendments that do not affect Distributor, the amendments shall be posted on Choco's website. In other cases, Choco will provide Distributor with notice before the changes enter into force and allow Distributor a reasonable time to review. Amendments shall be deemed as agreed by Distributor if Distributor has not expressly objected to them by the time they take effect. In case of a timely objection by Distributor, Parties may agree on a reasonable remedy, or either Party may terminate the Agreement and Choco will refund the Distributor any pre-paid Fees on a pro-rata basis for the remainder of the Subscription Term. Notwithstanding the foregoing, Choco may amend its policies from time to time to make necessary adjustments due to changes in its Services or laws without prior notice. **12.3 Assignment and Subcontracting.** Distributor shall not, without the prior written consent of Choco, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Choco may at any time assign, transfer or deal in any other manner with all or any of its rights or obligations under this Agreement without Distributor’s consent. If Choco subcontracts any of its obligations to its subcontractors or affiliates (“**Vicarious Agents**”), Choco will remain responsible for their acts and omissions. **12.4 Entire Agreement and Order of Precedence.** The Agreement incorporates the Order Form(s), the applicable Service Specific Terms, DPA and Choco’s policies that are made available to the Distributor. It shall constitute the entire agreement between the Parties regarding the provision and use of the Services. The Agreement shall supersede any previous agreements, communications, representations and understandings between them, whether written or oral, relating to this subject matter. In case of any inconsistency or conflict between the provisions of this Agreement, the following order of precedence shall apply: DPA, Order Form, Service Specific Terms and main body of the Agreement. **12.5 Headings.** Headings or titles used in this agreement are for convenience and reference purposes only and shall not be considered in the interpretation or construction of any provision of this Agreement. **12.6 Waiver and Severability.** No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver, nor shall it prevent or restrict the further exercise of any right or remedy. If any part of this Agreement is determined to be invalid or unenforceable by a competent court, that part shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Agreement. **12.7 Governing Laws and venue.** The Agreement shall be governed by the laws of England and Wales. Exclusive jurisdiction and venue for all disputes arising from or connected with this Agreement shall lie with the competent courts of England and Wales. ## Main Services Agreement *Updated on 8 April 2025 to replace the term “Supplier” with “Distributor.” All references to “Distributor” in these terms shall be deemed to include the previously used term “Supplier” as well. There are no other changes that affect the content of the legal terms.* **Preamble** Choco Communications UK Limited (“**Choco**”) operates a cloud-based order management and communication platform for Distributors (e.g., wholesalers) and their customers (e.g., restaurants) in the food industry ("**Cloud Service**") and provides related Onboarding and Support Services as well as Integration Services s (collectively “**Implementation Services**” and, together with the Cloud Service, each a “**Service**” and collectively the “**Services**”). A description of each Service is available[ here](https://legal.choco.com/ukpremium#services). This Main Services Agreement (“**MSA**”) governs the provision and use of the Services. Distributor agrees to be bound by the MSA by either executing an Order Form which incorporates the MSA or by accessing and/or making use of the Free Services (as defined in section 1.3 below). Capitalised terms not otherwise defined in the MSA shall have the meaning assigned to them elsewhere in the Agreement. THEREFORE, in consideration of the foregoing, Choco and Distributor (each a "**Party**" and collectively the "**Parties**") agree as follows: **1 Scope of the Services** **1.1 Access to Cloud Service.** Choco hereby grants Distributor a non-exclusive, non-transferable, non-sublicensable right to access and use the Cloud Service during the term of the Agreement, solely for its own business operations and in accordance with the terms and conditions of the Agreement. Distributor is responsible for arranging the necessary equipment and the internet connection to use the Cloud Service. Distributor will have no right to any specific design or specific functionalities beyond the scope of the Cloud Service agreed in the Order Form. **1.2 Choco Deliverables.** While providing Services, Choco may create deliverables for Distributor (“**Choco Deliverables**”). Choco hereby grants Distributor a non-exclusive, non-transferable, non-sublicensable right to use the Choco Deliverables during the term of the Agreement and in accordance with the terms and conditions thereof. Distributor shall not make any modifications to or use the Choco Deliverables for any other purposes than achieving the purpose of the Agreement without prior written approval of Choco. **1.3 Free Services.** Choco may offer certain features of the Cloud Service free of charge, such as trial periods, beta versions or delivery of orders from the restaurants using the Cloud Service in a digital form (“**Free Services**”). An entity benefiting from Free Services shall be deemed to constitute a Distributor and shall be subject to the terms of the Agreement governing use of the Cloud Service as long as it benefits from Free Services. Distributor acknowledges that Choco reserves the right to modify or terminate Distributor’s access to Free Services or any part thereof, at any time and for any reason in its sole discretion without any notice or liability to Distributor. Free Services are provided as-is and, to the maximum extent permitted by applicable law, Choco shall not be liable for any damages, costs or expenses resulting from the use of Free Services. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’ (as defined in section 12.3 below)) aggregate liability shall be limited to £1,000 (one thousand pounds). In the event of a conflict between this section 1.3 and the rest of the Agreement, this section 1.3 shall take precedence. **1.4 Service Specific Terms.** Some Services may be subject to additional terms specific to that Service, such as[ Integration GTCs,](https://legal.choco.com/ukpremium#integration)[ Onboarding GTCs](https://legal.choco.com/ukpremium#oands) and[ White-Label TCs](https://legal.choco.com/ukpremium#wl) (“**Service Specific Terms**”). Distributor agrees to be bound by the applicable Service Specific Terms by signing the Order Form or by accessing or using the Services covered by Service Specific Terms. **1.5 Availability.** Choco will make commercially reasonable efforts to make the Cloud Service available 98% of the time, based on a monthly average. Excluded therefrom are necessary planned maintenance work as well as disruptions that are not within Choco’s sphere of influence (such as force majeure events, downtime that results from a third party’s equipment, software or technology or internet connectivity issues). If possible, Choco shall in a timely manner notify Distributor about planned maintenance work. Nevertheless, Choco expressly reserves the right to carry out unannounced maintenance work if necessary, particularly where this is required for data and operational security. **1.6 Modifications.** Choco reserves the right to enhance, change or discontinue any and all features of the Cloud Service or introduce new features or Services at any time. If any such changes materially limit the features of the Cloud Service, Choco shall provide Distributor with advanced notice thereof. Distributor's continued use of the Cloud Service after being notified constitutes acceptance of those changes. In case of an objection by Distributor before such changes enter into force, Choco may terminate the Agreement or offer Distributor a reasonable remedy at its own discretion. **1.7 Third Party Components.** Certain components of the Cloud Service may be provided through third party services. Any such components that Distributor could recognize as being subject to third-party rights, including open-source licences, will be subject to applicable third party and open-source software licences. Above all, any components that Choco discloses as third-party content in the Agreement, in the Cloud Service or in any Choco policies will be deemed recognizable within the meaning of the previous sentence. Distributor agrees that availability of the Cloud Service or certain features may be dependent on the corresponding availability of the third-party services. Choco is not responsible for any interruptions or issues with the Cloud Service caused by the third-party components. The maps functionality on the Cloud Service is provided through Google Maps as a third party component. By making use of the Cloud Service and the maps functionality, Distributor agrees to be bound by Google's[ Terms of Service](http://www.google.com/intl/en/policies/terms) including[ Google Privacy Policy](https://policies.google.com/privacy?hl=en%5C&gl=us). **1.8 AI-powered Services.** The Cloud Service may encompass functionalities that are powered by artificial intelligence (“**AI**”). Distributor will retain ownership over the input it provides and the output generated by AI based on the input, both of which shall constitute Distributor Data (as defined in section 3.1 below). Choco does not guarantee the accuracy, completeness and reliability of the output generated by AI and, to the extent permitted by law, disclaims all warranties and liability for such output. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’) aggregate liability shall be limited to £1,000 (one thousand pounds). Output generated by AI may not be unique to Distributor and it does not represent Choco’s views. Distributor undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities. In the event of a conflict between this section 1.8 and the rest of the Agreement, this section 1.8 shall take precedence. **1.9 Third Party Services.** Choco may make some ancillary services or add-ons that are offered by third parties (“**Third Party Services**”) available on the Cloud Service, subject to the specific terms and conditions of the third party service provider. Distributor will need to enter into a separate contractual relationship with the relevant third party service provider to be able make use of such Third Party Services and acknowledges that a third-party service provider may refuse to enter into an agreement with Distributor at its own discretion. Choco may have access to certain Distributor information included these Third-Party Services to facilitate communication and enable their provision, and will treat such information as Distributor Data. Choco does not control the Third-Party Services and is not responsible, directly or indirectly, for any damage or loss resulting from the use of or reliance on these Third-Party Services. Any interactions Distributor has with the third party service provider are solely between Distributor and the third party service provider, and Choco assumes no liability for any issues arising from the Distributor’s agreements or dealings with these third party service providers. For the avoidance of doubt, Third Party Services will not be considered as the Services as defined under this MSA and will not be subject to the Agreement. Distributor shall be fully responsible for its use of the Third Party Services and shall indemnify Choco against any third-party claims, fines, and costs (including legal fees) arising from Distributor’s breach of its agreement with the third party service provider, applicable laws and regulations (such as scheme rules). **2 Access and Use of Cloud Service** **2.1 Authorised Users.** The licence granted to Distributor is limited to its employees, agents or contractors who are authorised by Distributor to use the Services (“**Authorised Users**”). Distributor is responsible for its Authorised Users’ compliance with the Agreement, including Choco’s policies on the use of the Cloud Service and for all of their acts and omissions. Distributor shall ensure that its Authorised Users keep the access data of their accounts confidential and shall inform Choco without undue delay if there is any suspicion that the access data may have become known to unauthorised persons. Distributor is solely responsible for all activities that occur under the accounts of its Authorised Users. **2.2 Use Restrictions.** Distributor shall not (a) reproduce, copy, modify, adapt, create derivative works, reverse engineer, decompile or engage in any action with the attempt to obtain the source code of the Cloud Service (except as permitted by mandatory law); (b) sublicense, sell, rent, distribute, transfer or provide a third party access to the Cloud Service or otherwise allow the use of the Cloud Service for the benefit of any third party; (c) engage in any conduct that interferes with or threatens the security, integrity or performance of the Cloud Service, including any related systems; (d) send any malicious code (e.g., viruses, worms, Trojan horses or other malware) through Cloud Service; (e) attempt to interfere with or otherwise circumvent any security measures, authentication mechanisms or any functional restrictions on the Cloud Service intended to limit its use; (f) use the Cloud Service in order to build a product or service which competes with the Cloud Service; (g) use any software, devices, robots or any other means to scrape data from the Cloud Service; (h) use the Cloud Service for fraudulent purposes; (i) make unfair use of the Cloud Service or (j) use the Cloud Service to send unsolicited commercial communications. If the Cloud Service allows Distributor to modify a Customer’s order or place orders on a Customer’s behalf, Distributor agrees to do so only with the clear instructions or explicit consent of the relevant Customer. **2.3 The relationship with the Customers.** Distributor is solely responsible for its use of the Services, such as for the contact it establishes with other companies, all communications sent via or in connection with the Cloud Service, the content and availability of the products and for the proper management of orders. By making the Cloud Service available, Choco merely provides the infrastructure for placing and managing orders and for communication. Choco itself will not directly or indirectly become a party to the relationship between Distributor and the restaurants or other market participants who place orders with Distributor (“**Customer(s)**”). Each order (individual sale and purchase of products) shall be concluded solely between Distributor and the relevant Customer. Choco will have no liability whatsoever with regard to the performance of those orders and shall not be a party to disputes of any kind between Distributor and its Customers (such as disputes relating to incorrect deliveries or late payments). Distributor is solely responsible for the proper management of orders, and for its relationship and communication with its Customers and with any other third parties that it may engage with using the Cloud Service. **2.4 Support and Maintenance**: Choco shall offer standard support services to assist Distributor in using the Cloud Service during regular working hours. Choco will also provide maintenance services at its own discretion, including error corrections, updates, and upgrades, as deemed necessary to ensure the Cloud Service's continued functionality. Support and maintenance do not cover issues resulting from Distributor’s misuse, unauthorised modifications or third-party systems. **3 Distributor Data and Responsibilities** **3.1 Distributor Data.** Distributor shall retain all right, title and interest in and to information, images, texts, data, files, Distributor Deliverables and other materials that are transmitted or submitted by or on behalf of Distributor to Choco in the course of Distributor's access and use the Services ("**Distributor Data**"). Distributor shall solely be responsible for the Distributor Data and shall ensure its accuracy, integrity and reliability throughout the term of the Agreement. Distributor grants Choco a non-exclusive, royalty-free, perpetual and worldwide licence to collect, process, reproduce, modify, host, store, disclose, display and perform all necessary acts on the Distributor Data for the purposes of operating the Cloud Service and providing the Services to Distributor. Distributor agrees that Choco may collect, analyze and use information about Distributor’s use of the Services (“**Usage Data**”) and Distributor Data internally for research, security, analytics purposes and for improving its Services. Choco shall be entitled to create aggregated and/or de-identified information derived from User Data and Distributor Data and use such information at its own discretion without being subject to any limitations, to the extent it does not identify Distributor, its Customers or any person. Choco may sublicense or transfer the rights granted herein to its Vicarious Agents. **3.2 Distributor’s Warranties.** Distributor agrees and warrants that (i) it will use the Services only for offering products that address food and hotel industry needs; (ii) it will comply with all laws applicable to its access and use of the Cloud Service, including but not limited to laws applicable to communications sent through the Cloud Service; (iii) it owns or will obtain the necessary rights and permissions to share the Distributor Data with Choco and to authorise the use of the Distributor Data by Choco as contemplated in this Agreement; (iv) it will provide the required information notices and obtain necessary consents under data protection laws for lawfully transferring data to Choco and enabling Choco to lawfully collect and process Distributor Data for the provision of the Services, as further described under the Data Processing Agreement; (v) it will comply with laws applicable to communications sent through the Cloud Service, including but not limited to those relating to obtaining consent (if necessary) and complying with opt-out requests; (vi) the Distributor Data and its use by Choco as contemplated in this Agreement do not violate any third-party rights or applicable laws; and (vii) the Distributor Data will not include any illegal, defamatory, inappropriate, offensive, hateful or violent content. **3.3 Removal.** Choco is not obliged to monitor the Distributor Data but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Distributor Data (including the products offered via the Cloud Service) if (i) it violates the Agreement including Choco policies made available to Distributor, (ii) it constitutes illegal content such as illegal hate speech, terrorist content, unlawful discriminatory content, or any content that the applicable laws render illegal or (iii) it is likely to give rise to complaints by third parties or other Choco customers. Due account of the fundamental rights and freedoms and legitimate interests of all parties involved will be taken when making decisions about removal of the Distributor Data. Choco will comply with binding orders of courts and supervisory authorities to remove any illegal Distributor Data from the Cloud Service. **3.4 Backup.** Choco will use commercially reasonable efforts to ensure integrity and availability of the Distributor Data. Notwithstanding the foregoing Distributor shall be solely responsible for the Distributor Data and shall take back-ups on a regular basis and commensurately with the risk. **3.5 Distributor Indemnity.** Distributor shall indemnify and hold Choco, its employees, representatives and Vicarious Agents harmless from and against any claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) asserted against them by a third party arising out of (i) Distributor's (including its Authorised Users’) use of the Services, (ii) the Distributor Data, (iii) performance of orders submitted to the Distributor, or (iv) Distributor’s (including its Authorised Users’) violation of applicable laws. Choco shall notify Distributor without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defence. Moreover, Choco at its own discretion will either surrender the right of defence to Distributor or undertake such defence in consultation with Distributor. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with Distributor, except where Distributor has not responded to Choco's notification of the claim within a reasonable time period. **3.6 Cooperation.** Distributor shall cooperate with Choco in good faith and provide all necessary information as reasonably required by Choco for the proper performance of the Services in a timely manner. All information provided by Distributor shall be up-to-date, complete, and accurate, and Distributor shall notify Choco in writing in case of any changes. Choco will not be liable for any delays in the provision of the Services caused by Distributor’s failure to provide Choco with the required information or cooperation. **4 Fees and Payment** **4.1 Fees.** Distributor shall pay Choco the fees agreed to in the Order Form or elsewhere in writing for the provision of the Services (the “**Fees**”). Unless expressly agreed otherwise in the Order Form, the Fees consist of a recurring monthly fee for the use of the Cloud Service (“**Subscription Fee**”) and a monthly or one-time fee for the Implementation Services (“**Implementation Fee**”). If the Parties agree on a monthly Implementation Fee, the Implementation Fee shall be payable for a maximum period of five (5) months. **4.2 Payment.** If the Parties agree on a monthly Implementation Fee, the Implementation Fee shall be payable at the beginning of each month of the Implementation Phase up to the maximum duration set forth in section 4.1 above. If the Parties agree on a one-time Implementation Fee, the Implementation Fee shall be payable at the Effective Date (as defined in section 9.1 below). The Subscription Fee shall be payable on the Subscription Start Date (as defined in section 9.1 below) and at the beginning of each subsequent month of the Subscription Term (as defined in section 9.1 below). Unless expressly agreed otherwise in the Order Form, all invoiced amounts shall be due within two weeks of the date on the invoice and payable by direct debit. Choco may, at its discretion, accept alternative payment methods, including credit card or any other methods it deems acceptable. In case of late payment, Choco reserves the right to charge interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate but at the rate of 4% per annum for any period during which that base rate is below 0% (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date to the date of actual payment. **4.3 Taxes.** The Fees are exclusive of taxes and Distributor shall be responsible for the taxes associated with the purchase of the Services. The applicable value added tax or other applicable taxes will be charged at the statutory rate to Distributor. **4.4 Discounts.** Unless otherwise specified in the Order Form, any discounts are valid only for the relevant Subscription Term in which they are provided and do not automatically extend or apply to subsequent terms, renewals, or extensions. **5 Intellectual Property** **5.1 Reservation of Rights.** Distributor acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Cloud Service, Choco Deliverables, any improvements or modifications to the foregoing. Distributor does not have any rights in or to the Cloud Service and the Choco Deliverables, except for the limited express rights granted in this Agreement. The term Cloud Service includes any systems, programs, application programming interfaces or Integrations developed by or on behalf of Choco. In addition, Choco reserves all right, title, interest and ownership over aggregated and/or de-identified information derived from User Data and Customer Data. **5.2 Feedback.** Distributor allows Choco to use, copy, disclose and exploit any suggestions and other feedback provided by Distributor and its Authorised Users freely in order to improve and enhance the Services and for development of other services in any manner without any obligation, royalty, attribution or restriction based on intellectual property rights or otherwise. **5.3 Trademark License.** Distributor grants Choco a non-exclusive, worldwide licence to use Distributor's trademarks for operating the Cloud Service and for the performance of the Agreement. Choco shall be specifically entitled to display the trademark on Distributor's Distributor profile and to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Agreement. Otherwise, the right of use may not be transferred or assigned. **5.4 Customer Reference.** Choco may use Distributor’s name and logo in its marketing materials, presentations and similar communications to refer to Distributor as a customer. Distributor may revoke this consent any time by giving prior written notice. **6 Confidentiality** **6.1 Duty of Confidentiality.** The Parties undertake to keep confidential any information and documents of the disclosing party, which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets ("**Confidential Information**") and to use them exclusively for the purposes allowed under this Agreement. The technical components, documentation and the source code of the Cloud Service and the terms of the Order Form shall be considered as Confidential Information of Choco. The receiving party shall undertake reasonable technical and organisational measures to protect Confidential Information. **6.2 Disclosure of Confidential Information.** The receiving party is entitled to disclose Confidential Information of the disclosing party solely (i) to its employees, Vicarious Agents, contractors or consultants on a need to know basis for the performance of this Agreement, provided that they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) where required by law, (iv) to third parties upon prior written approval of the disclosing party. "Affiliates" (meaning, in relation to a party, any: (i) subsidiary or holding company of that party; (ii) body corporate with an ultimate holding company in common with that party; and (iii) officer of that party or of such subsidiary, holding company or body corporate, and “subsidiary”, “holding company”, “body corporate” and “officer” shall have the meanings set out in sections 1159 and 1173 respectively of the Companies Act 2006) of the receiving party shall not be considered third parties and the receiving party may freely disclose Confidential Information to its Affiliates. When requests are made by judicial or administrative authorities relating to the disclosure of Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law. **6.3 Exclusions from Confidentiality.** Confidential Information does not include information that (i) was already known to the receiving party prior to disclosure, (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was brought to the attention of or shared with the receiving party by a bona fide third party authorised to do so. **6.4 Duration of Confidentiality**. The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Agreement. In addition, the duty of confidentiality shall remain in place for a period of three (3) years after cessation of the Agreement, unless statutory provisions provide for a longer confidentiality obligation. **7 Data Protection** 7.1 With regard to the personal data that Choco processes on behalf of Distributor for provision of the Services under this Agreement, the Parties conclude a Data Processing Agreement available here ("**DPA**") and which is hereby incorporated by reference into this MSA. **8 Suspension** **8.1 Suspension.** Choco is entitled, but not obliged, to monitor Distributor’s and its Authorised Users’ use of the Services and may suspend Distributor's or its any of its Authorised Users’ access to the Cloud Service (i) if Choco reasonably believes a violation of the Agreement has occurred, (ii) if the suspension is necessary for technical or security reasons or to avert imminent damage to Choco, Distributor or third parties or (iii) if Choco is obliged to suspend access by law. Choco will use commercially reasonable efforts to provide advance notice of suspension, unless prohibited by law. Choco shall lift the suspension if the reason for the suspension no longer exists. Choco will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Distributor may incur as a result of a suspension triggered by its Authorised Users’ own acts or omissions. **9 Term and Termination** **9.1 Term.** The Agreement shall commence on the date identified as the effective date on the Order Form (“**Effective Date**”). The term of the Agreement comprises the “**Implementation Phase**” and the “**Subscription Term**”. The Implementation Phase starts with the Effective Date and ends on the date when integration is complete, meaning that order information (meaning the list of ordered products, their product IDs and quantities), order’s expected delivery date and the Customer number are successfully transmitted and integrated into Distributor's ERP or designated system (“**Subscription Start Date**”). Whilst additional components may be identified and assessed by the Parties depending on the specific functionalities of Distributor’s systems during the Implementation Phase, these will not be considered in determining the Subscription Start Date. If Integration is not in scope there won't be an Implementation Phase and the Effective Date will be considered as the Subscription Start Date. The Subscription Term starts on the Subscription Start Date and continues for a period of twelve (12) months or as otherwise indicated in the Order Form. The Subscription Term shall be renewed for successive periods of twelve (12) months if the Agreement is not terminated in writing by either Party with three (3) months' prior notice before the end of the respective Subscription Term. Choco may update the terms of the Agreement, including the Fees, with effect from the start of a renewal term by giving notice to Supplier before commencement of the renewal term. **9.2 Termination for Cause.** Without prejudice to any other rights or remedies, either Party may, by written notice to the other, terminate the Agreement with immediate effect on the happening of any of the following events: (i) the other Party commits a material breach of the Agreement which is incapable of remedy; or (ii) the other Party commits a material breach of the Agreement which is capable of remedy and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach. This clause shall not apply to breach of limited warranty provided by Choco as per section 10 and the exclusive remedies of Distributor are listed therein. **9.3 Termination by Choco.** For the purpose of section 9.2(i) above a material breach by Distributor will be deemed incapable of remedy if (i) Distributor has repeatedly used the Services to place Distributor Data or products that are not permissible under the Agreement; (ii) Distributor is in default of its payment obligations for longer than two (2) weeks; (iii) Distributor becomes insolvent, files for or has filed against it, a petition of bankruptcy or; (iv) Distributor has acted against the use restrictions set out in section 2.2 above. **9.4 Effects of Termination.** When the Agreement for the Services offered against remuneration is terminated Distributor shall lose its access to the Services, with the exception of the Free Services which may be still provided to the Distributor at Choco’s sole discretion. After termination, Choco will have no obligation to Distributor to continue storing Distributor Data and will delete the Distributor Data in its systems upon Distributor’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Distributor Data if Choco is obliged to do so by law or to the extent that the Distributor Data is required for accounting and documentation purposes or for the operation of the Cloud Service. **9.5 Survival.** The sections 1.3 (Free Services), 3.5 (Distributor Indemnity), 4 (Fees and Payment), 6 (Confidentiality), 9.4 (Effects of Termination) and 11 (Limitation of Liability) and others which by their nature are intended to survive, shall survive after termination or expiration of this Agreement. **10 Warranty** **10.1 Limited Warranty.** Choco provides a limited warranty against defects in the Services. A defect is deemed to exist in case of any significant deviations from the functional scope of the Services as described in the Agreement that render the use of the Service impossible or greatly restricted. Distributor shall without undue delay notify Choco in writing of any defect and provide all information that is available to Distributor and is necessary for Choco to identify, reproduce, analyse and remedy the defect. Furthermore, Distributor shall assist Choco in remedying defects free of charge and in a reasonable manner. Choco will either rectify the defect or deliver the impacted Service once again at its discretion and within a reasonable period of time upon receiving written notification of the defect. The provision of instructions for use, with which Distributor can reasonably workaround the defects, will also be deemed to be a remedy of defects. If both remedies fail, Choco will at its own discretion offer Distributor a reasonable remedy (such as by giving Distributor a reasonable discount on the affected Services or terminating the Agreement partially or in whole). This limited warranty does not apply (i) to any defects caused by unauthorised use, abuse, negligence or equipment of Distributor, (ii) to any defects not notified by Distributor within 30 days upon noticing the defect. Choco's sole responsibility and Distributor's sole exclusive remedies against defects are set out in this section. **10.2 Limitation period.** All claims by Distributor shall become time barred upon elapse of the earlier of the statutory limitation period, or a period of twelve (12) months from Distributor becoming aware of the fact or event giving rise to the cause of action. **10.3 Disclaimer of Warranty.** Except as expressly provided herein and to the maximum extent permitted by applicable law, the Services are provided as-is and on an as available basis. Choco hereby disclaims all warranties of any kind, whether express or implied by statute or common law, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or non-infringement. Choco does not warrant that all errors can be corrected, or that operation of the Services shall be uninterrupted or error-free, nor does Choco guarantee any specific results in connection with use of the Services. **11 Limitation of Liability** **11.1 Limitation of Liability.** Choco’s (including any representatives’, employees’, agents’, and Vicarious Agents’) full and aggregated liability for any and all damages arising out of or in connection with this Agreement (whether such liability arises from contract, tort (including negligence), misrepresentation, breach of any duty (including strict liability) or otherwise), shall be limited to the Fees paid by Distributor during the last 12 months preceding the last event giving rise to liability. In cases of ordinary negligence, Choco shall be liable when there has been a breach of a material contractual duty. A material contractual duty within the meaning of this section is an obligation the fulfilment of which makes the performance of the Contract even possible in the first place. **11.2 Disclaimer of Consequential and Related Damages.** Choco (and any representatives, employees, agents, and Vicarious Agents) shall only be liable for direct and foreseeable damages at the time of the conclusion of the Agreement and shall not be liable for incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, loss of data, damage to reputation, costs of delay or procurement of substitute services, any business interruption, even if Choco has been advised of the possibility of such damages. **11.3 Exclusions from Limitation of Liability.** The limitations on liability set out in this section shall not apply for losses caused by death or personal injury caused by its negligence, or the negligence of its personnel, agents, Vicarious Agents, fraud or fraudulent misrepresentation; and any other liability which cannot be limited or excluded by applicable law. **12 Final Provisions** **12.1 Force Majeure.** Choco shall have no liability to the Distributor under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Choco or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of vendors or sub-contractors, provided that the Distributor is notified of such an event and its expected duration. **12.2 Amendments.** Choco may amend this Agreement with effect for the future. Any amendments and side agreements to this Agreement must be made in writing. In case of minor or cosmetic amendments that do not affect Distributor, the amendments shall be posted on Choco's website. In other cases, Choco will provide Distributor with notice before the changes enter into force and allow Distributor a reasonable time to review. Amendments shall be deemed as agreed by Distributor if Distributor has not expressly objected to them by the time they take effect. In case of objection, Choco may terminate the Agreement or offer Distributor a reasonable remedy at its own discretion. Notwithstanding the foregoing, Choco may amend its policies from time to time to make necessary adjustments due to changes in its Services or laws without prior notice. **12.3 Assignment and Subcontracting.** Distributor shall not, without the prior written consent of Choco, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Choco may at any time assign, transfer or deal in any other manner with all or any of its rights or obligations under this Agreement without Distributor’s consent. If Choco subcontracts any of its obligations to its subcontractors or affiliates (“**Vicarious Agents**”), Choco will remain responsible for their acts and omissions. **12.4 Entire Agreement and Order of Precedence.** The Agreement consists of this MSA (including DPA), the Order Form, the applicable Service Specific Terms and Choco’s policies that are made available to the Distributor. It shall constitute the entire agreement between the Parties regarding the provision and use of the Services. The Agreement shall supersede any previous agreements, communications, representations and understandings between them, whether written or oral, relating to this subject matter. In case of any inconsistency or conflict between the provisions of this Agreement, the following order of precedence shall apply: DPA, Order Form, Service Specific Terms and MSA. **12.5 Headings.** Headings or titles used in this agreement are for convenience and reference purposes only and shall not be considered in the interpretation or construction of any provision of this Agreement. **12.6 Waiver and Severability.** No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver, nor shall it prevent or restrict the further exercise of any right or remedy. If any part of this Agreement is determined to be invalid or unenforceable by a competent court, that part shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Agreement. **12.7 Governing Laws and venue.** The Agreement shall be governed by the laws of England and Wales. Exclusive jurisdiction and venue for all disputes arising from or connected with this Agreement shall lie with the competent courts of England and Wales. ## **Main Services Agreement** **Preamble** Choco Communications UK Limited (“**Choco**”) operates a cloud-based order management and communication platform for suppliers and buyers (restaurants) in the food industry (the "**Cloud Service**"). Choco further offers professional services in connection with the use of the Cloud Service, such as onboarding and integration services (the “**Professional Services**”). Together with the Free Services (as defined below), the Cloud Service and the Professional Services collectively referred to as the “**Services**”. This Main Services Agreement (“**MSA**”) governs the provision and use of the Services. Supplier agrees to be bound by the MSA by executing an Order Form with Choco referencing this MSA or by accessing or making use of the Free Services. Capitalised terms not otherwise defined in the MSA will have the respective meanings assigned to them elsewhere in the Agreement. THEREFORE, in consideration of the foregoing, Choco and Supplier (hereinafter each a "**Party**" and collectively the "**Parties**") agree as follows: **1 Scope of the Services** **1.1 Access to Cloud Service.** Choco hereby grants Supplier a non-exclusive, non-transferable, non sublicensable right to access and use the Cloud Service during the term of the Agreement, solely for its own business operations and in accordance with the terms and conditions of the Agreement. Supplier is responsible for arranging the necessary equipment and the Internet connection to be able to use the Cloud Service. Supplier will have no right to any specific design or specific functionalities beyond the scope of the Cloud Service agreed in the Order Form. **1.2 Professional Services.** Parties may agree on provision of Professional Services in the Order Form or elsewhere in writing, which shall be governed by this Agreement. While providing Professional Services, Choco may create deliverables for Supplier (the “**Choco Deliverables**”). Choco hereby grants Supplier a non-exclusive, non-transferable, non-sublicensable right to use the Choco Deliverables during the term of the Agreement and in accordance with the terms and conditions thereof. Supplier shall not make any modifications or use the Choco Deliverables for any other purposes than achieving the purpose of the Agreement without prior written approval of Choco. **1.3 Free Services.** Choco may offer certain Cloud Services free of charge, such as trial periods, beta versions or delivery of orders from the restaurants using the Cloud Service in a digital form (the “**Free Services**”). An entity benefiting from the Free Services shall be deemed as a Supplier and shall be subject to the terms of the Agreement governing use of the Cloud Service as long as it benefits from the Free Services. Supplier acknowledges that Choco reserves the right to modify or terminate Supplier’s access to the Free Services or any part thereof, at any time and for any reason in its sole discretion without any notice or liability to Supplier.Free Services are provided as-is and to the maximum extent permitted by applicable law, Choco shall not be liable for any damages, costs, expenses resulting from the use of the Free Services. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’) aggregate liability shall be limited to £1000 (one thousand pounds). In the event of a conflict between this clause and the rest of the Agreement, this section shall take precedence. **1.4 Service Specific Terms.** Some Services may be subject to additional terms specific to that Service (“**Service Specific Terms**”). Supplier agrees to be bound by the applicable Service Specific Terms by signing the Order Form or by accessing or using the Services covered by Service Specific Terms. **1.5 Availability.** Choco will make commercially reasonable efforts to make the Cloud Service available 98% of the time, based on a monthly average. Excluded therefrom are necessary planned maintenance work as well as disruptions that are not within Choco’s sphere of influence (such as force majeure events, downtime that results from a third party’s equipment, software or technology or internet connectivity issues). If possible, Choco shall in a timely manner notify Supplier about planned maintenance work. Nevertheless, Choco expressly reserves the right to carry out unannounced maintenance work, if necessary, particularly where this is required for data and operational security. **1.6 Modifications.** Choco reserves the right to enhance, change or discontinue any and all features of the Cloud Service, or introduce new features or Services at any time. If any such changes materially limit the features of the Cloud Service, Choco shall provide Supplier with advanced notice thereof. Supplier's continued use of the Cloud Service after being notified constitutes acceptance of those changes. In case of an objection by Supplier before such changes enter into force, Choco may terminate the Agreement or offer Supplier a reasonable remedy at its own discretion. **1.7 Third Party Components.** Certain components of the Cloud Service may be provided through third party services. Any such components that Supplier could recognize as being subject to third-party rights, including open-source licences, will be subject to applicable third party and open-source software licences. Above all, any components that Choco discloses as third-party content in the Agreement, in the Cloud Service or in any Choco policies will be deemed recognizable within the meaning of the previous sentence. Supplier agrees that availability of the Cloud Service or certain features may be dependent on the corresponding availability of the third-party services. Choco is not responsible for any interruptions or issues with the Cloud Service caused by the third-party components. The maps functionality on the Cloud Service is provided through Google Maps as a third party component. By making use of the Cloud Service and the maps functionality, Supplier agrees to be bound by Google's[ Terms of Service](http://www.google.com/intl/en/policies/terms) including [Google Privacy Policy](https://policies.google.com/privacy?hl=en%5C&gl=us). **1.8 AI-powered Services.** The Cloud Service may encompass functionalities that are powered by artificial intelligence (the “AI”). Supplier will retain ownership over the input it provides and the output generated by AI based on the input, both of which shall constitute Supplier Data (as defined below). Choco does not guarantee the accuracy, completeness and reliability of the output generated by AI and, to the extent permitted by law, disclaims all warranties and liability for such output. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’) aggregate liability shall be limited to £1000 (one thousand pounds). Output generated by AI may not be unique to Supplier and it does not represent Choco’s views. Supplier undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities, available here. In the event of a conflict between this section and the rest of the Agreement, this section shall take precedence. **2 Access and Use of Cloud Service** **2.1 Authorised Users.** The licence granted to Supplier is limited to its employees, agents or contractors who are authorised by Supplier to use the Services (the “**Authorised Users**”). Supplier is responsible for its Authorised Users’ compliance with the Agreement, including Choco’s policies on the use of the Cloud Service and for all of their acts and omissions. Supplier shall ensure that its Authorised Users keep the access data of their accounts confidential and shall inform Choco without undue delay if there is any suspicion that the access data may have become known to unauthorised persons. Supplier is solely responsible for all activities that occur under the accounts of its Authorised Users. **2.2 Usage Rules and Restrictions.** Supplier shall use the Cloud Services only for offering products that address food and hotel industry needs and comply with all laws applicable to its access and use of the Cloud Service. Supplier shall not (a) reproduce, copy, modify, adapt, or create derivative works, reverse engineer, decompile or engage in any action with the attempt to obtain the source code of the Cloud Service (except as permitted by mandatory law); (b) sublicense, sell, rent, distribute, transfer or provide a third party access to the Cloud Service or otherwise allow the use of the Cloud Service for the benefit of any third party; (c) engage in any conduct that interferes with or threatens the security, integrity or performance of the Cloud Service including any related systems; (d) send any malicious code (e.g., viruses, worms, Trojan horses or other malware) through Cloud Service; (e) attempt to interfere with or otherwise circumvent any security measures, authentication mechanisms or any functional restrictions on the Cloud Service intended to limit its use; (f) use the Cloud Service in order to build a product or service which competes with the Cloud Service; (g) use any software, devices, robots or any other means to scrape data from the Cloud Service; (h) use the Cloud Service for fraudulent purposes; (i) make unfair use of the Cloud Service or (j) use the Cloud Service to send unsolicited commercial communications. If the Cloud Service allows Supplier to modify a Customer’s order or place orders on a Customer’s behalf, Supplier agrees to do so only with the clear instructions or explicit consent of the relevant Customer. **2.3 The relationship with the Customers.** Supplier is solely responsible for its use of the Cloud Service, such as for the contact it establishes with other companies, all communications sent via or in connection with the Cloud Service, the content and availability of the products and for the proper management of orders. By making the Cloud Service available, Choco merely provides the infrastructure for placing and managing orders and for communication. Choco itself will not directly or indirectly become a party to the relationship between Supplier and the restaurants who are placing orders from Supplier (the “**Customer(s)**”). Each order (individual sale and purchase of products) shall be concluded solely between Supplier and the relevant Customer. Choco will have no liability whatsoever with regard to the performance of those orders and shall not be a party to disputes of any kind between Supplier and its Customers (such as disputes relating to incorrect deliveries or late payments). Supplier is solely responsible for the proper management of orders, and for its relationship and communication with its Customers and with any other third parties that it may engage with using the Cloud Service. **2.4 Cooperation.** Supplier shall cooperate with Choco in good faith and provide all necessary information as reasonably required by Choco for the proper performance of the Services in a timely manner. All information provided by Supplier shall be up-to-date, complete, and accurate, and Supplier shall notify Choco in writing in case of any changes. Choco will not be liable for any delays in the provision of the Services caused by Supplier’s failure to provide Choco with the required information or cooperation. **3 Supplier Data and Responsibilities** **3.1 Supplier Data.** Supplier shall retain all right, title and interest in and to information, images, texts, data, files, Supplier Deliverables and other materials that is transmitted, submitted or otherwise made available by or on behalf of Supplier to Choco in the course of Supplier's access and use the Services (the "**Supplier Data**"). Supplier shall solely be responsible for the Supplier Data and shall ensure its accuracy, integrity and reliability throughout the term of the Agreement. Supplier grants Choco a non-exclusive, royalty-free, perpetual and worldwide licence to collect, process, reproduce, modify, host, store, disclose, display and perform all necessary acts on the Supplier Data for the purposes of operating the Cloud Service and providing the Services to Supplier. Supplier agrees that Choco may collect, analyze and use information about Supplier’s use of the Services (“**Usage Data**”) and Supplier Data internally for research, security, analytics purposes and for improving its Services. Choco shall be entitled to create aggregated and/or de-identified information derived from User Data and Supplier Data and use such information at its own discretion without being subject to any limitations, to the extent it does not identify Supplier, its Customers or any person. Choco may sublicense or transfer the rights granted herein to its Vicarious Agents. **3.2 Supplier’s Warranties.** Supplier warrants that (i) it owns or will obtain the necessary rights and permissions to share the Supplier Data with Choco and to authorise the use of the Supplier Data by Choco as contemplated in this Agreement; (ii) it will provide the required information notices and obtain necessary consents under data protection laws for lawfully transferring data to Choco and enabling Choco to lawfully collect and process Supplier Data for the provision of the Services, as further described under the Data Processing Agreement; (iii) the Supplier Data and its use by Choco as contemplated in this Agreement do not violate any third-party rights or applicable laws; (iv) it will comply with laws applicable to communications sent through the Cloud Service, including but not limited to those relating to obtaining consent (if necessary) and complying with opt-out requests and (v) the Supplier Data will not include any illegal, defamatory, inappropriate, offensive, hateful or violent content. **3.3 Removal.** Choco is not obliged to monitor the Supplier Data but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Supplier Data (including the products offered via the Cloud Service) (i) if it violates the Agreement including Choco policies made available to Supplier, (ii) if it constitutes illegal content such as illegal hate speech, terrorist content, unlawful discriminatory content, or any content that the applicable laws render illegal or (iii) if it is likely to give rise to complaints by third parties or other Choco customers. Due account of the fundamental rights and freedoms and legitimate interests of all parties involved will be taken when making decisions about removal of the Supplier Data. Choco will comply with binding orders of courts and supervisory authorities to remove any illegal Supplier Data from the Cloud Service. **3.4 Backup.** Choco will use commercially reasonable efforts to ensure integrity and availability of the Supplier Data. Notwithstanding the foregoing Supplier shall be solely responsible for the Supplier Data and shall take back-ups on a regular basis and commensurately with the risk. **3.5 Supplier Indemnity.** Supplier shall indemnify and hold Choco, its employees, representatives, Vicarious Agents harmless from and against any claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) asserted against them by a third party arising out of (i) Supplier's (including its Authorised Users’) use of the Services, (ii) the Supplier Data, (iii) performance of orders submitted to the Supplier, or (iv) Supplier’s (including its Authorised Users’) violation of applicable laws. Choco shall notify Supplier without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defence. Moreover, Choco at its own discretion will either surrender the right of defence to Supplier or undertake such defence in consultation with Supplier. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with Supplier, except where Supplier has not responded to Choco's notification of the claim within a reasonable time period. **4 Fees and Commissions, Reporting, Payment** **4.1 Fees.** Supplier shall pay Choco the fees agreed to in the Order Form or elsewhere in writing for the provision of the Services (the “**Fees**”). Unless expressly indicated in the Order Form, the Fees consist of recurring monthly fees for the use of the Cloud Service (the “**Monthly Fee**”) and a one-time fee for Professional Services (the “**Implementation Fees**”). Parties may agree on a minimum monthly fee in the Order Form (the “**Minimum Monthly Fee**”). If the amount of Monthly Fee in a calendar month falls below the amount of the Minimum Monthly Fee, then Supplier shall pay Choco the Minimum Monthly Fee. **4.2 Payment.** Unless expressly agreed otherwise in the Order Form, the Fees shall be invoiced monthly in arrears and all invoiced amounts shall be due within two weeks of the date on the invoice and paid by direct debit. In case of late payment, Choco reserves the right to charge interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate but at the rate of 4% per annum for any period during which that base rate is below 0% (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date to the date of actual payment. **4.3 Taxes.** The Fees are exclusive of taxes and Supplier shall be responsible for the taxes associated with the purchase of the Services. The applicable value added tax or other applicable taxes will be charged at the statutory rate to Supplier. **4.4 Calculation of Monthly Fees.** Supplier is aware that the Cloud Service transmits to Choco an evaluation of the orders transmitted to Supplier via the Cloud Service during a calendar month (the “**Order Evaluation”**) for the purpose of calculation the Monthly Fees. Monthly Fees shall be calculated in accordance with the method agreed in the Order Form and based on the Order Evaluation. Upon request, Supplier shall without undue delay provide Choco with any additional information and evidence necessary for calculating the Fees and verifying the accuracy of the information provided by Supplier. In case of a conflict between the information provided by Supplier and the Order Evaluation, the Order Evaluation shall take precedence and be used as a basis for calculation. **4.5 Audit.** Choco is entitled to have the accuracy of the information provided by Supplier verified by an independent auditor, who shall be bound by confidentiality obligations and not be a competitor of Supplier. The audit may take place once each calendar quarter at Supplier's premises during Supplier's normal business hours. Choco shall give Supplier at least two (2) weeks' prior notice of any such audit. The auditor shall disclose audit findings to Choco to the extent that the findings deviate from the information provided by Supplier; otherwise, the auditor may confirm to Choco only the accuracy of the information provided by Supplier. Supplier shall be obligated to provide the auditor with all information and disclose all documents that are necessary for the performance of the reviews. If a review by the auditor reveals a deviation of more than 5% to the detriment of Choco, then Supplier shall bear the costs of the respective audit and the Fees shall be calculated based on amounts identified by the auditor; otherwise Choco shall bear the costs of the respective audit. **5 Intellectual Property** **5.1 Reservation of Rights.** Supplier acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Cloud Service, Choco Deliverables and any improvements or modifications to the foregoing and aggregated. Supplier does not have any rights in or to the Cloud Service and the Choco Deliverables, except for the limited express rights granted in this Agreement. The term Cloud Service includes any systems, programs, application programming interfaces or Integrations developed by or on behalf of Choco. In addition, Choco reserves all right, title, interest and ownership of aggregated and/or de-identified information derived from User Data and Customer Data. **5.2 Feedback.** Supplier allows Choco to use, copy, disclose and exploit any suggestions and other feedback provided by Supplier and its Authorised Users freely in order to improve and enhance the Services and for development of other services in any manner without any obligation, royalty, attribution or restriction based on intellectual property rights or otherwise. **5.3 Trademark License.** Supplier grants Choco a non-exclusive, worldwide licence to use Supplier's trademarks for operating the Cloud Service and for the performance of the Agreement. Choco shall be specifically entitled to display the trademark on Supplier's supplier profile and to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Agreement. Otherwise, the right of use may not be transferred or assigned. **5.4 Customer Reference.** Choco may use Supplier’s name and logo in its marketing materials, presentations and similar communications to refer to Supplier as a customer. Supplier may revoke this consent any time by giving prior written notice. **6 Confidentiality** **6.1 Duty of Confidentiality.** The Parties undertake to keep confidential any information and documents of the disclosing party, which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets ("**Confidential Information**") and to use them exclusively for the purposes allowed under this Agreement. The technical components, documentation and the source code of the Cloud Service and the terms of the Order Form shall be considered as Confidential Information of Choco. The receiving party shall undertake reasonable technical and organisational measures to protect Confidential Information. **6.2 Disclosure of Confidential Information.** The receiving party is entitled to disclose Confidential Information of the disclosing party solely (i) to its employees, contractors, Vicarious Agents or consultants on a need to know basis for the performance of this Agreement, provided that they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) where required by law, (iv) to third parties upon prior written approval of the disclosing party. "Affiliates" (meaning, in relation to a party, any: (i) subsidiary or holding company of that party; (ii) body corporate with an ultimate holding company in common with that party; and (iii) officer of that party or of such subsidiary, holding company or body corporate, and “subsidiary”, “holding company”, “body corporate” and “officer” shall have the meanings set out in sections 1159 and 1173 respectively of the Companies Act 2006) of the receiving party shall not be considered third parties and the receiving party may freely disclose Confidential Information to its Affiliates. When requests are made by judicial or administrative authorities relating to the disclosure of Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law. **6.3 Exclusions from Confidentiality.** Confidential Information does not include information that (i) was already known to the receiving party prior to disclosure, (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was brought to the attention of or shared with the receiving party by a bona fide third party authorised to do so. **6.4 Duration of Confidentiality**. The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Agreement. In addition, the duty of confidentiality shall remain in place for a period of three (3) years after cessation of the Agreement, unless statutory provisions provide for a longer confidentiality obligation. In particular, any business secrets shall be treated confidentially for as long as they are business secrets. **7 Data Protection** 7.1 With regard to the personal data that Choco processes on behalf of Supplier for provision of the Services and the personal data that the Parties process as joint controllers under this Agreement, the Parties conclude a Data Processing Agreement available here ("**DPA**") and which is hereby incorporated by reference into this MSA. **8 Suspension** **8.1 Suspension.** Choco is entitled, but not obliged, to monitor Supplier’s and its Authorized Users’ use of the Services and may suspend Supplier's or its any of its Authorized Users’ access to the Cloud Service (i) if Choco reasonably believes a violation of the Agreement has occurred, (ii) if the suspension is necessary for technical or security reasons or to avert imminent damage to Choco, Supplier or third parties or (iii) if Choco is obliged to suspend access by law. Choco will use commercially reasonable efforts to provide advance notice of suspension, unless prohibited by law. Choco shall lift the suspension if the reason for the suspension no longer exists. Choco will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Supplier may incur as a result of a suspension triggered by its Authorized Users’ own acts or omissions. **9 Term and Termination** **9.1 Term.** The Agreement shall commence on the Effective Date indicated in the Order Form and shall have a term of twelve (12) months unless terminated earlier pursuant to the Agreement. The Agreement shall be renewed for successive periods of twelve (12) months if it is not terminated in writing by either Party upon three (3) months' notice to the end of the respective Agreement period. Choco may update the terms of the Agreement, including the Fees, with effect from the start of a renewal term by giving notice to Supplier before commencement of the renewal term. **9.2 Termination for Cause.** Without prejudice to any other rights or remedies, either party may, by written notice to the other, terminate the Agreement with immediate effect on the happening of any of the following events: (i) the other party commits a material breach of the Agreement which is incapable of remedy; or (ii) the other party commits a material breach of the Agreement which is capable of remedy and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach. This clause shall not apply to breach of limited warranty provided by Choco as per section 9 and the exclusive remedies of Supplier are listed therein. **9.3 Termination by Choco.** For the purpose of section 18.2 in the case of Choco material breach incapable of remedy will be deemed to exist specifically if (i) Supplier has repeatedly placed Supplier Data or products that is not permissible under the Agreement; (ii) Supplier is in default of its payment obligations for more than two (2) weeks; (iii) Supplier becomes insolvent, files for or has filed against it, a petition of bankruptcy or (iv)if Supplier acts against use restrictions set out in section 2.2. Choco may terminate the Agreement for convenience without having to give any reasons any time with a notice period of one (1) month. **9.4 Effects of Termination.** When the Agreement for the Services offered against remuneration is terminated Supplier shall lose its access to the Services, with the exception of the Free Services which may be still provided to the Supplier at Choco’s sole discretion. After termination, Choco will have no obligation to Supplier to continue storing Supplier Data and will delete the Supplier Data in its systems upon Supplier’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Supplier Data if Choco is obliged to do so by law or to the extent that the Supplier Data is required for accounting and documentation purposes or for the operation of the Cloud Service. **9.5 Survival.** The sections 1.3 (Free Services), 3.5 (Indemnification), 4 (Fees and Commissions, Reporting, Payment), 6 (Confidentiality), 9.4 (Effects of Termination) and 11 (Limitation of Liability) and others which by their nature are intended to survive, shall survive after termination or expiration of this Agreement. **10 Warranty** **10.1 Limited Warranty.** Choco provides a limited warranty against defects in the Services. A defect is deemed to exist in case of any significant deviations from the functional scope of the Services as described in the Agreement that render the use of the Service impossible or greatly restricted. Supplier shall without undue delay notify Choco in writing of any defect and provide all information that is available to Supplier and is necessary for Choco to identify, reproduce, analyze and remedy the defect. Furthermore, Supplier shall assist Choco in remedying defects free of charge and in a reasonable manner. Choco will either rectify the defect or deliver the impacted Service once again at its discretion and within a reasonable period of time upon receiving written notification of the defect. The provision of instructions for use, with which Supplier can reasonably workaround the defects, will also be deemed to be a remedy of defects. If both remedies fail, Choco will at its own discretion offer Supplier a reasonable remedy (such as by giving Supplier a reasonable discount on the affected Services or terminating the Agreement partially or in whole). This limited warranty does not apply (i) to any defects caused by unauthorized use, abuse, negligence or equipment of Supplier, (ii) to any defects not notified by Supplier within 30 days upon noticing the defect. Choco's sole responsibility and Supplier's sole exclusive remedies against defects are set out in this section. **10.2 Limitation period.** All claims by Supplier shall become time barred upon elapse of the earlier of the statutory limitation period, or a period of twelve (12) months from Supplier becoming aware of the fact or event giving rise to the cause of action. **10.3 Disclaimer of Warranty.** Except as expressly provided herein and to the maximum extent permitted by applicable law, the Services are provided as-is and on an as available basis. Choco hereby disclaims all warranties of any kind, whether express or implied by statute or common law, including, but not limited to, warranties of merchantability, fitness for a particular purpose, or non-infringement. Choco does not warrant that all errors can be corrected, or that operation of the Services shall be uninterrupted or error-free, nor does Choco guarantee any specific results in connection with use of the Services. **11 Limitation of Liability** **11.1 Limitation of Liability.** Choco’s (including any representatives’, employees’, agents’, and Vicarious Agents’) full and aggregated liability for any and all damages arising out of or in connection with this Agreement (whether such liability arises from contract, tort (including negligence), misrepresentation, breach of any duty (including strict liability) or otherwise), shall be limited to the Fees paid by Supplier during the last 12 months preceding the last event giving rise to liability. In cases of ordinary negligence, Choco shall be liable when there has been a breach of a material contractual duty. A material contractual duty within the meaning of this section is an obligation the fulfilment of which makes the performance of the Contract even possible in the first place. **11.2 Disclaimer of Consequential and Related Damages.** Choco (and any representatives, employees, agents, and Vicarious Agents) shall only be liable for direct and foreseeable damages at the time of the conclusion of the Agreement and shall not be liable for incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, loss of data, damage to reputation, costs of delay or procurement of substitute services, any business interruption, even if Choco has been advised of the possibility of such damages. **11.3 Exclusions from Limitation of Liability.** The limitations on liability set out in this section shall not apply for losses caused by death or personal injury caused by its negligence, or the negligence of its personnel, agents, Vicarious Agents, fraud or fraudulent misrepresentation; and any other liability which cannot be limited or excluded by applicable law. **12 Final Provisions** **12.1 Force Majeure.** Choco shall have no liability to the Supplier under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Choco or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of vendors or sub-contractors, provided that the Supplier is notified of such an event and its expected duration. **12.2 Amendments.** Choco may amend this Agreement with effect for the future. Any amendments and side agreements to this Agreement must be made in writing. In case of minor or cosmetic amendments that do not affect Supplier, the amendments shall be posted on Choco's website. In other cases, Choco will provide Supplier with notice before the changes enter into force and allow Supplier a reasonable time to review. Amendments shall be deemed as agreed by Supplier if Supplier has not expressly objected to them by the time they take effect. In case of objection, Choco may terminate the Agreement or offer Supplier a reasonable remedy at its own discretion. Notwithstanding the foregoing, Choco may amend its policies from time to time to make necessary adjustments due to changes in its Services or laws without prior notice. **12.3 Assignment and Subcontracting.** Supplier shall not, without the prior written consent of Choco, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Choco may at any time assign, transfer or deal in any other manner with all or any of its rights or obligations under this Agreement without Supplier’s consent. If Choco subcontracts any of its obligations to its subcontractors or affiliates (“**Vicarious Agents**”), Choco will remain responsible for their acts and omissions. **12.4 Entire Agreement and Order of Precedence.** This Agreement includes the MSA (including DPA), the Order Form, applicable Service Specific Terms and Choco’s policies that are made available to the Supplier. It shall constitute the entire agreement between the Parties regarding the provision and use of the Services. The Agreement shall supersede any previous agreements, communications, representations and understandings between them, whether written or oral, relating to this subject matter. In case of any inconsistency or conflict between the provisions of this Agreement, the following order of precedence shall apply: DPA, Order Form, Service Specific Terms and MSA. **12.5 Headings.** Headings or titles used in this agreement are for convenience and reference purposes only and shall not be considered in the interpretation or construction of any provision of this Agreement. **12.6 Waiver and Severability.** No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver, nor shall it prevent or restrict the further exercise of any right or remedy. If any part of this Agreement is determined to be invalid or unenforceable by a competent court, that part shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Agreement. **12.7 Governing Laws and venue.** The Agreement shall be governed by the laws of England and Wales. Exclusive jurisdiction and venue for all disputes arising from or connected with this Agreement shall lie with the competent courts of England and Wales. ## **Software-as-a-Service Terms and Conditions** **Preamble** Choco Communications UK Limited (“**Choco**”) operates a cloud solution (Software-as-a-Service, or “SaaS”) which, amongst others, enables suppliers in the food industry to receive orders digitally, simplify order processing for restaurant businesses ("**Customers**") and to communicate efficiently with them ("**Software**") and offers services. Customers are afforded an opportunity to conveniently place and manage orders with all their suppliers using the Software. The Supplier wishes to use the Software and/or benefit from the services to simplify order processing for its customers and to be able to solicit new customers. NOW THEREFORE, in consideration of the foregoing, Choco and the Supplier (hereinafter referred to individually as a "**Party**" and collectively as the "**Parties**") hereby enter into the following agreement: **1 Other Applicable Provisions and Order of Priority** 1.1 In addition to the provisions of these Software-as-a-Service General Terms and Conditions, including the annexes thereto ("**SaaS GTC**"), the provisions of the Order Form together with its annexes, which may be executed in the form of a document, or an online sign up or landing page("**Order Form**"), and the special provisions designated governing the services provided under the respective agreed packages in the Order Form, including the annexes thereto (the "**Special Provisions**"), may also apply (the Saas-GTC, the Order Form and the Special Provisions hereinafter collectively referred to as the "**Contract**"). 1.2 If there are any inconsistencies between the Order Form, the SaaS-GTC and the Special Provisions, then the relevant provisions shall apply in the order of priority prescribed below: Annex 1 to the SaaS-GTC (DPA), retrievable at https://legal.choco.com/ukpremium#dpa Order Form Annexes to the Order Form Special Provisions SaaS-GTC **2 Subject Matter and Contract Formation; Supplier General Terms and Conditions** 2.1 The Software is intended only for professional, use and is aimed exclusively at business customers. Consumers are not permitted to use the Software. The Supplier represents and warrants that it uses the Software as a business. Choco reserves the right to verify the Supplier’s status at any time, particularly on the basis of the information and documents that were provided during the formation of the Contract. Upon request, the Supplier shall without undue delay provide Choco with any additional evidence required for this purpose. The Supplier has no right to compel the formation of the Contract. 2.2 The Contract may be concluded either by executing the Order Form in writing ("**Offline Contract Formation**") or via the Internet ("**Online Contract Formation**"). Both the Offline Contract Formation and Online Contract Formation must be made by an employee or agent of the Supplier who is authorized to represent the Supplier. If the Supplier does not execute an Order Form, but an employee or agent of the Supplier who is authorized to represent the Supplier uses the services or Software, such use shall be governed by the Contract and the Supplier shall be deemed to have accepted such terms. 2.3 In the case of the Offline Contract Formation, Choco and the Supplier shall complete the Order Form as agreed. The Supplier will thereafter sign the Order Form and send it to Choco. 2.4 In the case of an Online Contract Formation, the Supplier shall complete all information within the Order Form marked by Choco as necessary. Until the send button is clicked, the Supplier may amend or cancel the Order Form at any time. 2.5 By sending the Order Form in writing to Choco (in case of an Offline Contract Formation) or by submitting the Order Form (in case of an Online Contract Formation), the Supplier will be submitting a legally binding request to Choco to conclude the Contract ("**Offer**"). In the event of an Online Contract Formation and without undue delay following Choco’s receipt of the Offer, Choco shall confirm receipt of the Offer by sending a confirmation thereof to the Supplier at the email address that the Supplier has provided in connection with the Online Contract Formation ("**Confirmation of Receipt**"). This Confirmation of Receipt does not, however, constitute an acceptance of the Supplier's Offer. 2.6 A contract between Choco and Supplier will be formed only if and when Choco has accepted the Offer. Choco’s declaration of acceptance will be formally made in the case of both an Online Contract Formation and Offline Contract Formation either through a declaration of acceptance in rendered text form (e.g., by email) or by providing access to the Software ("**Contract Formation**"). 2.7 Subject to section 12, the Supplier may retrieve the current SaaS-GTC at any time during the Online Contract Formation process by going to https://legal.choco.com/ukpremium#saas. In the event of an Offline Contract Formation, subject to section 12, the Supplier will receive a copy of the Contract either as a paper hardcopy or as an electronic copy. 2.8 Unless expressly agreed by Choco in writing, the Supplier's general terms and conditions will not become part of the Contract. **3 Choco’s Services** **3.1 Access to the Software and services** 3.1.1 For the limited term of the Contract, Choco shall provide the Supplier with access to the Software via the Internet. The use requirements and scope of the Software and the services that Choco will provide can be found in the Order Form. Beyond the agreed scope, the Supplier will have no right to any specific design or specific functionalities of the Software and/or of the services performed by Choco. 3.1.2 Choco may also provide services to the Supplier without giving access to the Software as may be agreed in the Order Form or described elsewhere. The terms of this SaaS-GTC shall apply to those services to the extent applicable and relevant depending on the nature of the respective service. 3.1.3 Operation and maintenance of the Software shall be the responsibility of Choco. The Supplier has no right to access the source codes of the Software. 3.1.4 Choco is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities including the internet, and the Supplier acknowledges that the Software and services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. 3.1.5 Choco will make commercially reasonable efforts to make the Software available 98% of the time, based on a monthly average, i.e., the Software could be unavailable for up to 15 hours per month. Excluded from this downtime are necessary planned maintenance work as well as disruptions that are not within Choco’s control (including, for example, force majeure events, interruptions caused by third party licensors which make up part of the Software, or failures caused by the Supplier’s incorrect operation). If possible, Choco shall in a timely manner notify Supplier in writing about planned maintenance work. Notwithstanding the foregoing, Choco expressly reserves the right to carry out unannounced maintenance work, if necessary, particularly where this is required for data and operational security. 3.1.6 Choco may make available documentation concerning the Software as well as instructions regarding its use and shall do so in English online. The Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. No printed documentation will be provided by Choco. 3.1.7 If Choco is obligated to provide support services under the Package agreed to between the Parties, then Choco shall provide such support services in the scope, at the times and within the response times as agreed in the Order Form or as described in the Special Provisions. 3.1.8 Choco will be entitled in its own discretion to engage subcontractors or its affiliates to perform the services. Choco shall remain liable for its acts or omissions of its sub-contractors and affiliates. **3.2 Offer of Products; Orders; Placement of Product Contracts; Choco’s role.** 3.2.1 In connection with using the Software, the Supplier will be able to offer its Customers the opportunity to purchase goods and products ("**Products**"), to digitally receive corresponding orders for Products placed by the Customers via the Software or other communication channels specified by the Supplier ("**Orders**"), and to communicate with the Customers. 3.2.2 The Supplier may enter into contracts with Customers for the purchase and delivery of Products ("**Product Contracts**") by using the Software and on the basis of purchase orders. 3.2.3 The Supplier is solely responsible for its use of the Software, such as for the contact it establishes with other companies, communications sent via or in connection with the Software, the content and availability of the Products and for the proper management of orders. Choco merely provides the infrastructure for offering Products, communication and managing orders and shall have no liability to Customers for the Products offered by the Supplier nor for the management of orders. 3.2.4 If the Supplier concludes Product Contracts with Customers via the Software, then Choco will be merely acting as a messenger in transmitting the declarations of intent that are made by the Supplier and the relevant Customer and are aimed at concluding Product Contracts and will itself not become a party to the Product Contracts. Each Product Contract shall be concluded solely between Supplier and the relevant Customer. Neither the Supplier nor the relevant Customer will have any rights vis-à-visChoco under a Product Contract; Choco shall not be responsible for the proper performance of the respective Product Contract, and instead the Supplier and the relevant Customer will have that responsibility. Choco will have no liability whatsoever with regard to the performance of the Product Contracts, and above all not with regard to its proper performance or with regard to any defects to, the Products sold. Choco shall not be a party to disputes of any kind between the Supplier and its Customers, including any disputes that may arise during the conclusion or execution of Product Contracts nor for relationship or communications between the Supplier and the Customers. 3.2.5 The Supplier has no right against Choco to compel the conclusion of Product Contracts. **3.3 Updates and modifications** 3.3.1 Choco is under no obligation to update or upgrade the Software. 3.3.2 From time to time, Choco may provide or make updates available to the Supplier and the Supplier shall install any such update as soon as reasonably practicable. 3.3.3 Choco shall not be liable for any failure of any Software to operate in accordance with the Contract if the Supplier does not install any update. 3.3.4 Choco reserves the right to offer additional functionalities in the Software or services that it deems appropriate, in a form and according to the technical means that it deems most suitable for the relevant functionality or service. Choco also reserves the right to modify the Software (or any functionality of the Software) and services or to remove certain functionality, serviceor other information to which a Supplier has access at its own discretion. Any subsequent update, enhancement or other modifications to the Software and the services shall be owned by Choco and subject to the terms of this Contract. In the event that any such changes materially limit the features of the Software or the services, Choco shall provide Supplier with advanced notice thereof. The Supplier's continued use of the Software and services after being notified constitutes acceptance of those changes. In case of an objection by the Supplier, Choco may terminate the Contract or offer the Supplier a reasonable remedy at its own discretion. **4 Intellectual Property** 4.1 Subject to section 4.3 and 4.4, upon commencement of the Contract, Choco grants the Supplier for the term of the Contract the non-exclusive, revocable, non-sublicensable, non-transferrable right to use the Software, services and documentation in accordance with the Contract, solely in connection with the Supplier’s internal business operations. The licence granted to the Supplier is limited use of the Software by its authorized users. 4.2 Unless explicitly allowed under mandatory applicable law, Supplier shall not (a) modify, adapt, alter or translate the Software; (b) sublicense, sell, transfer or otherwise allow the use of the Software for the benefit of any third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code of the Software; (d) modify, copy or make derivative works based on any part of the Software or documentation; (e) attempt to access the Software through any unapproved interface; or (f) otherwise use the Software in any manner inconsistent with applicable law. 4.3 The Supplier acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Software, services and the documentation. Except as expressly granted herein or under mandatory applicable law, this Contract does not grant the Supplier any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (where registered or unregistered) or any other rights of licences in respect of the Software, services and the documentation. 4.4 Certain components of the Software and services may be provided through third party services. Any such components that the Supplier could recognize as being subject to third-party rights, including open-source licences, will be excluded from the grant of rights and will be subject to applicable third party and open-source software licences. Above all, any components that Choco discloses as third-party content in the Order Form, in the Software or in accompanying text files will be deemed recognizable within the meaning of the previous sentence. The Supplier agrees that availability of the Software or certain features may be dependent on the corresponding availability of the third-party services. Choco is not responsible for any interruptions or issues with the Software caused by the third party services. 4.5 Both during and after the term of the Contract, Supplier allows Choco to use any suggestions, enhancement requests, recommendations or other feedback provided by the Supplier, including by its authorized users, in order to improve and enhance the Software and the services and for other development, diagnostic and corrective purposes for those or other offerings of Choco, without payment, attribution or restriction. **5 Supplier Obligations** **5.1 Access and data security; Cooperation; Contact information.** 5.1.1 The Supplier shall ensure that it is able to accept Choco’s services. In particular, Choco is not responsible for providing any hardware or software required to use the Software and the services. The Supplier is responsible for the operation and availability of its own company software. 5.1.2 The Supplier shall keep the access data to the Software safe and may make such data accessible to authorized users, who are the Supplier’s employees, agents, or contractors only. The Supplier is responsible for its authorized users’ compliance with the Contract and for all acts and omissions of its authorized users. 5.1.3 The Supplier and its authorized users shall keep the access data confidential. The Supplier shall inform Choco without undue delay if there is any suspicion that the access data may have become known to unauthorized persons. The Supplier is solely responsible for all activities that occur through use of its access data. 5.1.4 The Supplier shall refrain from any conduct that jeopardizes or interferes with the functioning of the Software or intrudes into or damages Choco’s systems and shall not access or process any content or data that the Supplier is not authorized to access or process. The Supplier shall comply with all security measures and the functional and other restrictions of the Software and shall, in particular, not remove, override, disable or otherwise circumvent any protection or authentication mechanisms. The Supplier shall ensure that its transmitted information and content posted via the Software is not infected with harmful computer programs (e.g., viruses, worms, Trojan horses or other malware) and that it does not upload or send any content intended to induce third parties - including other suppliers or customers - to disclose confidential information (e.g., passwords), to harass third parties, to automatically redirect third parties to other Internet offers outside the Software, or to violate the rights of third parties. The Supplier shall refrain from any other conduct that may impair the intended operation of the Software or the IT infrastructure of Choco or to otherwise violate applicable law. 5.1.5 The Supplier shall be solely responsible for its data and content, which are stored, processed and otherwise transmitted to Choco in connection with the Software (within the meaning of section 5.3.1), and shall create back-ups on a regular basis and commensurately with the risk. The foregoing shall apply both to the Supplier’s data and content on the local systems and to that data and content which the Supplier stores on the IT infrastructure hosted by Choco. The Supplier shall specifically back-up such data and content, which is described in this section and which the Supplier is obligated to store by law or regulation.Choco shall not be responsible for any loss, destruction, or alteration of data, and shall be under no obligation to carry out back-up activities in relation to the same. 5.1.6 The operation and configuration of the Software is the Supplier’s responsibility. Insofar as Choco provides the Supplier with guidance, recommendations, tips or advice within the Software or offers information or analysis results generated by the Software, this information will be automatically generated and shall serve as non-binding information intended to support the Supplier in its business decision-making. Such support services do not release the Supplier from checking the accuracy of the respective information and from taking into account all other circumstances relevant in the context of the decision-making process. 5.1.7 The Supplier warrants and undertakes that it is free to enter into the Contract and has the right, power and authority to perform its obligations and give the undertakings containing with the terms of the Contract. 5.1.8 The Supplier warrants that the information provided in the context of concluding the Contract is accurate and complete. The Supplier shall be obligated to keep such information up-to-date and to notify Choco about any changes without undue delay. This information includes, above all, the Supplier’s contact and business information. 5.1.9 Upon request, the Supplier shall provide Choco with all further information that Choco, in its sole discretion, requires for the proper performance of the service and Software. This information includes, above all, information which is marked as required within the Software (e.g., information regarding the Supplier's order preferences, including delivery territory, minimum order value, and delivery dates). 5.1.10 The Supplier shall ensure that it will process all orders received via the Software or via the delivery methods specified to Choco within a reasonable period of time and in a manner customary in the market. 5.1.11 In order to enable Choco to import the order lists of the Supplier's Customers into the Software, the Supplier shall in a timely manner provide Choco with the names, Customer numbers and individual order lists of such Customers who have already registered for the use of the Software or who already order from Supplier via the Software. If the Supplier's Customers register for the use of the Software for the first time during the term of the Contract, then the Supplier shall provide Choco with the individual order lists of such Customers without undue delay, and no later than twenty-four (24) hours after the Customer registers. Instead of the individual order lists of relevant Customers, the Supplier may provide to Choco the order history of the Products ordered from the Supplier in the last thirty (30) days. The Supplier shall ensure that the Products reported in the order lists are also listed in the Product catalogue and that the Products in the order list and in the Product catalogue can be assigned to each other by means of a clear, identical Product number. 5.1.12 If the Parties have agreed on the "Premium" package in the Order Form, then the Supplier shall without undue delay provide Choco with a Product catalogue covering all Products and Product groups of the Supplier's total product range. The Product catalogue shall contain items with the following minimum requirements: designation, Product number, availability, order unit, and its listed price. **5.2 Products; Required information** 5.2.1 Unless expressly agreed otherwise, the Supplier may only use the Software to offer and sell Products that address food and hotel industry needs. 5.2.2 It is the Supplier's responsibility to ensure that it offers and sells via the Software only those Products that it is lawfully authorized to offer and sell. The Supplier shall provide any and all information as required by law about the Supplier and its company and about the Products offered and sold. 5.2.3 The Supplier shall receive Customers’ orders through the Software and conclude Product Contracts by using the Software. **5.3 Contents; Use of the Software; Blocking** 5.3.1 The Supplier shall retain any and all rights to information, images, texts, documents, data, files and other contents which are transmitted to Choco in the course of Supplier's use of the Software and services or stored within the Software or the IT infrastructure provided by Choco ("**Supplier Content**") and warrants that it is authorized to transmit Supplier Content to Choco. The Supplier warrants that it has obtained all licences and permissions needed for Choco to use the Supplier Content in accordance with the Contract and is solely responsible for the accuracy, quality and legality of the Supplier Content. 5.3.2 The Supplier grants Choco a non-exclusive, perpetual and worldwide licence to use, host, store, display, reproduce, modify and distribute such Supplier Content for the performance and purposes of the Contract. In particular, Choco shall be entitled to reproduce and process Supplier Content for the purposes of operating the Software and providing services, for security, research and analytics purposes and to grant sublicences to its subcontractors or affiliates to the extent necessary for the purposes of the Contract. Otherwise, the licence may not be transferred or assigned. To the extent Supplier Content includes personal data, such data will be processed in compliance with Choco’s Privacy Policy available on its website. Choco shall retain all rights in the aggregated information derived from processing allowed under this section and may use it at its own discretion, to the extent it does not identify the Supplier, its Customers or any other person. 5.3.3 Furthermore, the Supplier grants Choco a non-exclusive, perpetual and worldwide licence to use the Supplier's trade marks for the purposes of the Contract. Choco shall be specifically entitled to use the trade marks for the purposes of operating the Software, including displaying them on the Supplier's supplier profile, and to grant sublicences to its subcontractors and affiliates to the extent necessary for the purposes of the Contract. Otherwise, the licence may not be transferred or assigned. 5.3.4 The Supplier warrants that the Supplier Content transmitted or stored by it does not infringe any third-party rights (for example, privacy and self-determination rights, rights to one's own image, intellectual property rights, including copyrights, trademark rights, etc.) and does not otherwise violate applicable law (for example, data protection rules) ("**Prohibited Content**"). 5.3.5 Choco is entitled to block or remove Prohibited Content and the offer of impermissible Products under section 5.2, upon weighing the interests of both parties; the same rule will apply if Choco is obligated by law to do so, based on a complaint by a Customer or a third party, a court judgment or regulatory order. 5.3.6 The Supplier warrants that when using the Software, it will comply with all applicable legal rules, including those imposed by copyright, fair dealing, youth protection, food and data protection laws. In particular, the Supplier shall use the Software exclusively for the intended and contractual use of the Software and in compliance with the statutory provisions, court judgments or regulatory directives on the mailing of advertising communication (including rules against the sending of unsolicited advertising emails). The Supplier may not use the Software to order to build a product or service which competes with the Software. 5.3.7 Choco will also be entitled to block individual Products, upon weighing the interests of both parties, if Choco has reasonable indications that the Supplier's Product offering is unlawful, misleading or for other reasons likely to give rise to complaints by third parties or to unreasonably high user complaints. 5.3.8 Choco will be entitled to block the Supplier's access to the Software, upon weighing the interests of both parties, if a. there are indications that the Supplier's access data has been or is being misused or that the access data has been or is being provided to an unauthorized third party or that access data is being used by more than one natural person; b. there are indications that third parties have otherwise gained access to the Software provided to the Supplier; c. the blocking is necessary for technical reasons; d. Choco is required to do so by law; e. the Supplier places Prohibited Content on the Software; f. the Supplier offers impermissible Products as described in section 5.2; g. the Supplier is more than two (2) weeks in arrears on the payment of the agreed fees or commissions in accordance with section 6 of the Contract; or h. the Supplier has stored incorrect or invalid contact data, and communication between Choco and the Supplier is no longer possible; or i. the blocking is necessary to avert imminent damage to Choco, the Supplier or third parties or to mitigate damage that has occurred. Choco shall notify the Supplier in writing about the blocking, including the reasons for it, no later than one (1) business day before the blocking takes effect and shall allow the Supplier to comment on the blocking, provided that the notification and/or waiting for the comment is reasonable (upon weighing the interests of both parties) and is compatible with the purpose of the blocking. Choco shall unblock the use of the Software for the Supplier if the reason for the blocking no longer exists. **5.4 Indemnification** 5.4.1 The Supplier shall indemnify and keep Choco indemnified against all claims, demands, actions, proceedings, losses, fines, penalties, awards, liabilities, damages, compensation, settlements, charges and expenses (including legal costs) suffered by Choco, its employees, representatives and or any of its group companies as a result of or in connection with any claim from a third party in relation to the Supplier's use of the Software (including in connection with Supplier's offer of Products, Supplier Content, Prohibited Content, Product orders, and the conclusion, performance or proper fulfillment of Product Contracts). 5.4.2 Choco shall notify the Supplier without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defence. Moreover, Choco at its own discretion will either surrender the right of defence to the Supplier or undertake such defence in consultation with the Supplier. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with the Supplier, except where the Supplier has not responded to Choco's notification of the claim within a reasonable time period. **6. Fees and Commissions, Reporting, Payment** 6.1 If the Parties have agreed in the Order Form on a package, the use of which requires the Supplier to pay fees and/or commissions, then the following provisions shall apply. 6.2 As consideration for the use of the Software and services provided under agreed package(s), the Supplier shall pay Choco the fees and commissions agreed to in the Order Form. 6.3 Unless expressly agreed otherwise in the Order Form, the Software shall transmit to Choco on a monthly basis (per calendar month) an evaluation of the orders transmitted to the Supplier via the Software ("**Order Evaluation**") for the purpose of calculating the commission. In this case, Choco shall calculate the respective commission due on the basis of a calculated total value of goods ("**Estimated Gross Merchandise Value**"). The Estimated Gross Merchandise Value shall be calculated by Choco multiplying the number of Products ordered according to the Order Evaluation by the price of the Products on the Supplier's standard price list. The Supplier shall in a timely manner provide Choco with the standard price list valid at the time of the transmitted orders. If the Parties agree in the Order Form that fees and/or commissions will be calculated based on the actual Gross Merchandise Value generated by the Supplier through Choco in a calendar month ("**Precise Gross Merchandise Value**"), then the Supplier shall provide Choco with the monthly Precise Gross Merchandise Value no later than the 10th day of the next month (or by such other date as may be agreed in the Order Form). Upon request, the Supplier shall without undue delay provide Choco with any evidence necessary to verify the Precise Gross Merchandise Value. 6.4 Choco is entitled to have the Precise Gross Merchandise Value and the correctness of the information provided by the Supplier in this respect verified by an independent auditor, who is bound to secrecy and is not a competitor of the Supplier, and to do so once each calendar quarter at the Supplier's premises during the Supplier's normal business hours. Choco shall give the Supplier in writing at least two (2) weeks' prior notice of any such review. Choco shall contractually obligate the auditor to ensure that (i) the reviews do not unreasonably interfere with the Supplier's ordinary business operations and (ii) the auditor will disclose to Choco information on the Precise Gross Merchandise Value to the extent that the Precise Gross Merchandise Value deviates from the information provided by the Supplier; otherwise, the auditor may confirm to Choco only the accuracy of the information provided by the Supplier. The Supplier shall be obligated to provide the auditor with all information and disclose all documents that are necessary for the performance of the reviews. If a review by the auditor reveals a deviation of more than 5% to the detriment of Choco between the Precise Gross Merchandise Value and the information provided by Supplier, then the Supplier shall bear the costs of the respective review; otherwise, Choco shall bear the costs of the respective review and the commission shall be calculated based on the Precise Gross Merchandise Value identified by the auditor. 6.5 Unless expressly agreed otherwise in the Order Form, fees and commissions shall be invoiced monthly in arrears and all invoiced amounts shall be due within two weeks of invoicing. In case of late payment, Choco reserves the right to charge interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate but at the rate of 4% per annum for any period during which that base rate is below 0% (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date to the date of actual payment. 6.6 Unless expressly agreed otherwise in the Order Form, all amounts are net amounts in Euro, to which the applicable value added tax will be charged at the statutory rate (if applicable), as well as any other applicable taxes. **7 Warranty** 7.1 Except as expressly and specifically provided in this Contract: 7.1.1 the Supplier assumes sole responsibility for results obtained from the use of the Software and services and the documentation provided by the Supplier, and for conclusions drawn from such use. Choco shall have no liability for any damage caused by errors or omissions in any information, Supplier Content, instructions or scripts provided to Choco by the Supplier in connection with the Software and services, or any actions taken by Choco at the Supplier's direction; 7.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract; and 7.1.3 the Software, services and the documentation are provided to the Supplier on an "as is" basis. 7.2 Except as expressly and specifically provided in this Contract, Choco does not warrant that the Software or services will: 7.2.1 be error-free or uninterrupted; 7.2.2 meet the Supplier's requirements; or 7.2.3 be free from viruses or malicious software. 7.3 With respect to the services and Software provided by Choco where a fee is charged, unless expressly agreed otherwise in the Order Form, Choco provides warranties against defects in the delivered Software and services in accordance with the following provisions and the remedies set out in this section 7 constitute the Supplier’s sole and exclusive remedy and Choco’s sole liability for any breach of warranty against defects.: 7.3.1 "**Defects**" or "**Defective**" for the purposes of this section 7.3 is defined as any significant deviations from the functional scope of the Software as agreed in the Order Form. 7.3.2 If the services provided by Choco under this Contract are Defective, then Choco shall, at its choice and within a reasonable period of time following receipt of the notice of Defect communicated by the Supplier in writing, either remedy the Defects or deliver the Services again. When using third-party software which Choco has licensed for the Supplier’s use, the remedying of Defects shall consist in the procurement and installation of generally available upgrades, updates or patches. The provision of instructions for use, with which the Supplier can reasonably workaround defects that have occurred in order to use the Software in accordance with the Contract, will also be deemed to be a remedy of Defects. 7.3.3 If, based on reasons for which Choco is responsible, Choco fails to remedy or re-deliver in accordance with section 7.3.2, Choco will offer the Supplier a reasonable remedy (such as a discount on the affected services or termination of the Contract) at its own discretion. 7.3.4 The Supplier shall without undue delay notify Choco in writing about any Defects that occur. The notice of Defects must contain all information that is available to the Supplier and is necessary for Choco to identify, reproduce, analyze and remedy the Defect. Furthermore, the Supplier shall assist Choco in remedying Defects free of charge and in a reasonable manner. 7.4 More extensive warranty claims are disclaimed. 7.5 All claims by the Supplier shall become time barred upon elapse of the earlier of the statutory limitation period, or a period of twelve (12) months from the Supplier becoming aware of the fact or event giving rise to the cause of action. **8 Limitations on Liability** 8.1 Nothing in this Contract shall limit or exclude either party's liability for: 8.1.1 death or personal injury caused by its negligence, or the negligence of its personnel, agents, affiliates or subcontractors; 8.1.2 fraud or fraudulent misrepresentation; and 8.1.3 any other liability which cannot be limited or excluded by applicable law. 8.2 Subject to section 8.1 and 8.4, with respect to its services and Software offered free of charge, Choco’s (and any affiliates', representatives', employees', agents', and sub-contractors' arising out of or in connection with this Contract (whether such liability arises in contract, tort (including negligence), misrepresentation, breach of any duty (including strict liability) or otherwise shall be limited to £1000 (one thousand pounds). 8.3 Subject to section 8.1 and 8.4, with respect to its services and Software for which Choco charges Suppliers, the maximum aggregate liability of Choco (including any affiliates, representatives, employees, agents, and sub-contractors) arising out of or in connection with this Contract (whether such liability arises in contract, tort (including negligence), misrepresentation, breach of any duty (including strict liability) or otherwise shall be limited to the amount payable by the Supplier during the 12 month-period from the commencement of the Contract, or the commencement of the renewed contract (as applicable). 8.4 Subject to section 8.1, Choco shall not be liable to the Supplier (whether such liability arises on contract or tort (including negligence) for misrepresentation, breach of any duty (including strict liability) or otherwise) for any of the following: 8.4.1loss of data; 8.4.2 loss of anticipated savings; 8.4.3 loss of business or contracts; 8.4.4 indirect or consequential loss or damage; 8.4.5 loss of profits; and 8.4.6 loss or depletion of goodwill. **9 Confidentiality** 9.1 The Parties undertake to keep confidential any information and documents of the respective other party, which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets ("**Confidential Information**"), and to use them exclusively for the purposes allowed under this Contract and not to make them accessible to third parties. The receiving party shall undertake reasonable technical and organizational measures to prevent unauthorized access or disclosure of Confidential Information. "Affiliates" (meaning, in relation to a party, any: (i) subsidiary or holding company of that party; (ii) body corporate with an ultimate holding company in common with that party; and (iii) officer of that party or of such subsidiary, holding company or body corporate, and “subsidiary”, “holding company”, “body corporate” and “officer” shall have the meanings set out in sections 1159 and 1173 respectively of the Companies Act 2006) of the receiving party shall not be considered third parties and the receiving party may freely disclose Confidential Information to its Affiliates. 9.2 Confidential Information on the part of Choco shall include, in particular, the technical components and the source codes of the Software as well as all technologies of Choco, information provided by Choco about the Software or in the context of support requests or cooperation for the purpose of troubleshooting, as well as this Contract including the annexes thereto, the Order Form and the agreed terms and conditions. 9.3 The receiving party is entitled to disclose the Confidential Information of the disclosing party, (i) to its employees, trainees, representatives, vicarious agents or consultants on a need to know basis if and to the extent such disclosure is necessary for the performance of this Contract (ii) in a legal proceeding, (iii) if the disclosure is mandatory by law or (iv) upon prior written approval of the disclosing party. When requests are made by third parties, judicial or administrative authorities relating to the disclosure of Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law. Except where doing so would require the receiving party to be in breach of applicable law, the receiving party shall further support the disclosing party in its efforts to prevent the disclosure of the Confidential Information. 9.4 The duty of confidentiality shall not apply to the extent that the Confidential Information was already known to the receiving party prior to disclosure, is generally known or becomes known to public through no fault of the receiving party or with respect to Confidential Information that was developed by the receiving party itself without access to the Confidential Information of the disclosing party or was brought to the attention of the receiving party by a bona fide third party authorized to do so. If the receiving party invokes one or more of the aforementioned reasons, then it must substantiate them by submitting suitable evidence. 9.5 The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Contract. In addition, the duty of confidentiality shall remain in place for a period of three (3) years from termination or the end of the Contract term, unless statutory provisions provide for a longer confidentiality obligation. In particular, any business secrets shall be treated confidentially for as long as they are business secrets. 9.6 During the period in which this duty of confidentiality remains binding, Confidential Information shall be returned without undue delay, undamaged and in full upon the first request made by Choco. Choco may also mandate that certain Confidential Information be destroyed, deleted or placed in safekeeping and that the execution thereof be confirmed in writing by the Supplier. 9.7 The foregoing provisions do not establish any rights of use under intellectual property law. All rights of use granted under this Contract shall remain unaffected by the above provisions. **10 Data Protection** With regard to the personal data that Choco processes on behalf of the Supplier under this Contract, the Parties shall conclude the Data Processing Agreement that may be found at https://legal.choco.com/ukpremium#dpa ("**DPA**"). In the event of any inconsistencies between this Contract and the DPA, the provisions of the DPA will prevail. **11 Term and Termination** 11.1 Unless otherwise expressly agreed in the Order Form, the Contract shall commence when the Contract is formed and shall have a term of twelve (12) months from the commencement of the Contract. 11.2 Unless otherwise expressly agreed in the Order Form, the Contract shall be renewed for successive contract periods of twelve (12) months each, if it is not terminated in writing by one of the Parties upon three (3) months' notice to the end of the respective contract period. Choco may update the terms of the Contract, including the fees and commissions, at each renewal, which will be notified to the Supplier before the renewal. 11.3 Choco may terminate the Contract for convenience without having to give reasons on one (1) month notice. 11.4 Without prejudice to any other rights or remedies, either party may, by written notice to the other, terminate the Contract with immediate effect on the happening of any of the following events: 11.4.1 the other party commits a material breach of the Contract which is incapable of remedy; or 11.4.2 the other party commits a material breach of the Contract which is capable of remedy and fails to remedy such material breach within thirty (30) days after receiving written notice requiring it to remedy that material breach. This section shall not apply to breach of limited warranty provided by Choco as per section 7 and the exclusive remedies of the Supplier are listed therein. 11.5 For the purposes of section 11.4.1 and 11.4.2, in the case of Choco material breach will be deemed to exist specifically if: 11.5.1 the Supplier has repeatedly - and despite previous warning from Choco - placed Prohibited Content on the Software; or 11.5.2 the Supplier offers impermissible Products as defined in section 5.2; or 11.5.3 the Supplier culpably breaches its duty of confidentiality under section 9; or 11.5.4 the Supplier is more than four (4) weeks in arrears on the payment of the agreed fees or commissions pursuant to section 6, and Choco has sent the Supplier a notice of termination in text form or in written form that threatens termination to take effect in two (2) weeks. 11.6 Upon termination or expiration of the Contract, for any reason whatsoever, Choco shall delete the Supplier's Content to the extent reasonably practicable. Choco is entitled, but not obliged, to store the Content for security or back-up reasons for a period of two (2) weeks after the termination or expiration of the contractual relationship. In this case, the DPA, which is available at https://legal.choco.com/ukpremium#dpa, shall continue to apply for the period of time during which the back-up copies are stored. The Supplier is directly responsible for any download of the Content during this period of time. Choco will also be entitled to retain Content beyond the termination of the contractual relationship if Choco is obliged to do so by law, court order or regulatory order (including reasons based on commercial and tax law) or to the extent that the Content is required for accounting, documentation and billing purposes or for the operation of the Software. 11.7 The sections 5.4 (Supplier indemnification), 6 (Fees and Commissions, Reporting, Payment), 8 (Limitation of Liability), 9(Confidentiality) and others which by their nature are intended to survive, shall survive after termination or expiration of this Contract. **12 Amendments to this Contract** Choco may, in its sole discretion, amend this Contract at any time. In case of minor or cosmetic amendments that do not negatively affect the Supplier, the amendments shall not be directly notified but posted in Choco's website, indicating the date of entry into force thereof. In other cases, Choco shall notify the Supplier of any adjustment in advance by notice in writing or via a notification within the Software. If the Supplier continues to use the Software after the new version of the Contract takes effect, any amendments to this Contract shall be deemed to have been accepted by the Supplier. In case of objection by the Supplier, Choco may terminate the Contract or offer the Supplier a reasonable remedy at its own discretion. **13 Force majeure** Choco shall have no liability to the Supplier under this Contract if it is prevented from or delayed in performing its obligations under this Contract, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Choco or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of vendors or sub-contractors, provided that the Supplier is notified of such an event and its expected duration. **14 Final Provisions** 14.1 Subject to section 12, any amendments and side agreements to this Contract must be made in writing. This requirement also applies to this written form section itself. 14.2 No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. 14.3 If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. 14.4 If any provision or part-provision of this Contract is deemed deleted under section 14.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. 14.5 The Supplier shall not, without the prior written consent of Choco, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract. Choco may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Contract. 14.6 This Contract 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. Each party acknowledges that in entering into this Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this Contract. 14.7 This Contract does not confer any rights on any person or party (other than the parties to this Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. 14.8 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales. 14.9 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims). ## Service Specific Terms Latest version Effective 15 November 2024 Effective 1 November 2023 Effective 16 September 2022 ## Integration-GTC Effective 23 October 2025 **1 Subject Matter of the Integration-GTC** 1.1 The subject matter of these Integration-GTC is the development of a technical infrastructure for digital transmission of information between the Cloud Service and Distributor’s enterprise resource planning (the “ERP”) system (the “Integration”) until its delivery to Distributor. Once accepted by Distributor, the Integration shall constitute a part of the Cloud Service. 1.2 Integrations built by or on behalf of the Distributor do not fall under the scope of these Integration GTC and Choco does not assume any responsibility for such integrations. 1.3 The services of Distributor’s ERP provider that are accessed through the Integration do not fall under the scope of the Agreement and are solely governed by the terms and conditions of the specific ERP provider. **2 Provision of the Integration Services** 2.1 The Parties shall mutually agree on the scope and channel of Integration, based on the standard content, channels and file formats supported by Choco as described in Annex-1. In case of any subsequent additions or changes to the agreed-upon scope, Choco reserves the right to adjust the timelines and charge additional Fees taking into consideration any extra efforts required to implement the changes. 2.2 Distributor shall provide Choco with a distinct technical contact person from its ERP provider who shall have sufficient technical knowledge and capacity to cooperate with Choco for the provision of the Integration Services. 2.3 Upon request, Distributor shall provide and shall ensure that its ERP provider provides Choco with all information required by Choco for the provision of the Integration Services in a timely manner, including sample catalog files, sample order files, API docs, documentation related to the system environment as well as with staging credentials and access rights to its ERP system and the test environment. Distributor shall ensure that Choco only gets access and permissions to the agreed transmission content and not to any other information that is not necessary for the Integration. 2.4 If Distributor cannot provide any test environment, then Distributor shall alternatively provide Customer information with which Choco can perform integration tests. Unless delivery of the test results is automated, Distributor shall provide Choco with the test results. Distributor shall ensure that the provided test environment corresponds to the same technical parameters as the live product environment. Distributor will provide Choco with (test) access data of the selected authentication method. Any documentation provided by Choco for the Integration Services as well as instructions regarding their use shall be deemed Confidential Information of Choco and Distributor shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. 2.5 Distributor shall inform Choco in a timely manner about any upcoming adjustments to its technical systems that could have an impact on the functionality of the Integration Services or the performance of Choco's obligations under the Agreement. Choco will not be responsible for any delays or defects in the transmission of orders due to updates not notified on time. **3 Acceptance Procedure** 3.1 The Integration shall be deemed complete and live when the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date are transmitted into the Distributor's ERP system. These constitute the conclusive list of main functionalities of the Integration. Whilst additional components may be identified and assessed by the Parties depending on the specific functionalities of Distributor’s systems during the implementation phase, these will not be considered in determining the date that Integration is complete. 3.2 When these main functionalities are ready, Choco shall either (i) conduct a live test in a meeting with the Customer, during which the Distributor shall accept the Integration if the functionalities are working, or (ii) submit the Integration to the Customer for testing at their convenience. Should the main functionalities not perform as expected during live test, Choco shall promptly address the defects and resubmit the Integration for acceptance. 3.3 In the event that the Integration is submitted for Distributor's independent testing, Distributor shall have a period of one (1) week from the date of submission to test and provide written acceptance. Should the main functionalities not perform as expected, Distributor shall immediately notify Choco of such defects in writing and Choco shall promptly address the defects and resubmit the Integration for acceptance. If Distributor fails to respond or provide acceptance within this period, and no material bugs or issues are reported, the Integration shall be deemed accepted and live at the conclusion of the one (1) week period. 3.4 Acceptance by the Distributor may not be unreasonably withheld due to minor flaws or defects that do not materially affect the functionality of the Integration. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after acceptance. 3.5 With respect to defects that were known to Distributor at the time of formal acceptance but were not reported by Distributor, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to Distributor due to negligence, Distributor will not be entitled to the rights related to defects as governed in section 10 of the MSA on Warranty, otherwise any defects that occur and notified to Choco after formal acceptance will be subject to section 10 of the MSA on Warranty. **Annex 1 - Integration Services** This Annex sets out the standard scope of Integration, in particular the transmission content, transmission channels, file formats and technical procedures supported by Choco. Distributor-specific customizations may be possible subject to additional charges. **A. Transmission Content** It is possible to transmit different components through an Integration, such as orders, Product Catalog, prices, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. The standard transmission content is the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date. Parties will agree on the transmission content in the technical coordination meeting. After such meeting, there may be a possibility for adding more components to the scope subject to additional charges. **B. Data Transmission** Data transmission may consist of one or a combination of the following technical channels: **1. HTTP(s) API** **2. (S)FTP Server** a) Hosting by Choco b) Hosting by the Distributor or a third-party provider **3. Choco App for an ERP system (Connector)** More details on the transmission channels are given below: **1. HTTP(s) API** Choco supports the following authentication: •Oauth 1.0 and 2.0 •Basic Auth •Open ID All other types of authentication (SAML, TLS, JWT,... ) require detailed technical review and may be subject to additional fees. Choco will keep all credentials strictly confidential and use them only for the purpose of Integration. Choco supports all common methods (GET, POST, PUT, PATCH) with a transmission of orders placed via POST and a retrieval of product catalogs via GET. Distributor will ensure endpoint availability throughout the entire term of the contract. Choco will repeat erroneous transmissions, but cannot guarantee a transmission in the absence of available endpoints. **2. (S)FTP server** a) Hosting by Choco Choco shall make a (S)FTP (SSH) server available and shall provide Distributor with username, password, URL and port. Distributor will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation. b) Hosting by the Distributor Distributor shall provide Choco with the username, password, URL and port of the (S)FTP server. Distributor shall ensure the availability of the endpoints throughout the entire term of the Agreement. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints. **3. Choco-App for an ERP system (Connector)** Choco provides system-side integration for selected ERP systems via an app or another standardized interface, whereby Choco builds a connector between the Cloud Service and Distributor’s ERP. **C. File Formats** Choco supports multiple file formats for the exchange: CSV, XML, JSON, TXT, Excel, EDI, X12. In the event there are unclear or missing specifications from the Distributor, Choco shall provide files in a standard format (including documentation). **D. Technical Procedure** 1\. Orders from Cloud Service to Distributor After the Integration is delivered (deployed in the production environment), Choco will send the orders to Distributor in real time via one of the transmission channels or shall make them available on an (S)FTP server. The Distributor shall import the orders in real time into its own ERP system. The purchase orders will follow the prescribed format, but will at a minimum contain (if not explicitly defined otherwise): •Order number (unique) •Product numbers (as specified by Distributor) •Distributor number 2\. Product catalogs from Distributor to Cloud Service Distributor shall regularly send a (complete and up to date) Product Catalog and/or Order Guides of its Customers to Choco or make them available via one of the selected transmission technologies. Choco shall import them in real time or at least every 24 hours (unless explicitly defined otherwise). Technical procedure for transmission of other components shall be agreed by the Parties. Unless agreed otherwise, both Parties shall use commercially reasonable efforts to transmit all components through Integration in real time. *\*no other changes than replacing "Supplier" with "Distributor"* ## Integration General Terms and Conditions *Updated on 8 April 2025 to replace the term ‘Supplier’ with ‘Distributor’.* These Integration General Terms and Conditions (the "Integration-GTC") together with the Main Services Agreement (the “MSA”) govern Choco’s performance of Integration Services consisting of development of a technical infrastructure for digital transmission of information between the Cloud Service and Distributor’s enterprise resource planning (the “ERP”) system (the “Integration”) and the Parties’ obligations in relation to that. hese Integration-GTC, together with the Annex-1 attached thereto, constitute an integral part of the Agreement entered into between Choco and Distributor. Capitalised terms not otherwise defined in these Integration-GTC shall have the meanings assigned to them in the Agreement. In the event of any inconsistency between these Integration-GTC and the Agreement, the order of precedence prescribed in the MSA shall apply. 1 Subject Matter of the Integration-GTC 1.1 he subject matter of these Integration-GTC is the development of the Integration until its delivery to Distributor. Once accepted by Distributor, the Integration shall constitute a part of the Cloud Service. 1.2 Integrations built by or on behalf of the Distributor do not fall under the scope of these Integration GTC and Choco does not assume any responsibility for such integrations. 1.3 he services of Distributor’s ERP provider that are accessed through the Integration do not fall under the scope of the Agreement and are solely governed by the terms and conditions of the specific ERP provider. 2 Provision of the Integration Services 2.1 If the Parties agree on a minimum number of active Customers for the launch of the Integration Services in the Order Form, then Choco will start to perform the Integration Services only once that minimum number is reached. A Customer shall be deemed active if it has placed at least one order with Distributor using the Cloud Service in the relevant calendar month (“Active Customer”). If the minimum number is not reached within twelve months from the Efective Date of the Agreement, either Party shall be entitled to terminate the Integration Services, unless Choco has already commenced with the performance of the Integration Services. 2.2 he Parties shall mutually agree on the scope and channel of Integration, based on the standard content, channels and file formats supported by Choco as described in Annex-1. In case of any subsequent additions or changes to the agreed-upon scope, Choco reserves the right to adjust the timelines and charge additional Fees taking into consideration any extra eforts required to implement the changes. 2.3 Distributor shall provide Choco with a distinct technical contact person from its ERP provider who shall have sucient technical knowledge and capacity to cooperate with Choco for the provision of the Integration Services. 2.4 Upon request, Distributor shall provide and shall ensure that its ERP provider provides Choco with all information required by Choco for the provision of the Integration Services in a timely manner, including sample catalog files, sample order files, API docs, documentation related to the system environment as well as with staging credentials and access rights to its ERP system and the test environment. Distributor shall ensure that Choco only gets access and permissions to the agreed transmission content and not to any other information that is not necessary for the Integration. 2.5 If Distributor cannot provide any test environment, then Distributor shall alternatively provide Customer information with which Choco can perform integration tests. Unless delivery of the test results is automated, Distributor shall provide Choco with the test results. Distributor shall ensure that the provided test environment corresponds to the same technical parameters as the live product environment. Distributor will provide Choco with (test) access data of the selected authentication method. Any Choco Deliverables provided by Choco for the Integration Services as well as instructions regarding their use shall be deemed Confidential Information of Choco and Distributor shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. 2.6 Distributor shall inform Choco in a timely manner about any upcoming adjustments to its technical systems that could have an impact on the functionality of the Integration Services or the performance of Choco's obligations under the Agreement. Choco will not be responsible for any delays or defects in the transmission of orders due to updates not notified on time. 3 Acceptance Procedure 3.1 he Integration shall be deemed complete when the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date are transmitted into the Distributor's ERP system. hese constitute the conclusive list of main functionalities of the Integration. Whilst additional components may be identified and assessed by the Parties depending on the specific functionalities of Distributor’s systems during the Implementation Phase, these will not be considered in determining the date that Integration is complete. 3.2 When these main functionalities are ready, Choco shall either (i) conduct a live test in a meeting with the Customer, during which the Distributor shall accept the Integration if the functionalities are working, or (ii) submit the Integration to the Customer for testing at their convenience. Should the main functionalities not perform as expected during live test, Choco shall promptly address the defects and resubmit the Integration for acceptance. 3.3 In the event that the Integration is submitted for the Customer’s independent testing, the Customer shall have a period of one (1) week from the date of submission to test and provide written acceptance. Should the main functionalities not perform as expected, Distributor shall immediately notify Choco of such defects in writing and Choco shall promptly address the defects and resubmit the Integration for acceptance. If the Customer fails to respond or provide acceptance within this period, and no material bugs or issues are reported, the Integration shall be deemed accepted at the conclusion of the one (1) week period. 3.4 Acceptance by the Distributor may not be unreasonably withheld due to minor flaws or defects that do not materially afect the functionality of the Integration. Choco shall within a reasonable period of time use commercially reasonable eforts to remedy such insignificant defects aer acceptance. 3.5 With respect to defects that were known to Distributor at the time of formal acceptance but were not reported by Distributor, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to Distributor due to negligence, Distributor will not be entitled to the rights related to defects as governed in section 10 of the MSA on Warranty, otherwise any defects that occur and notified to Choco aer formal acceptance will be subject to section 10 of the MSA on Warranty. Annex 1 - Integration Services his Annex sets out the standard scope of Integration, in particular the transmission content, transmission channels, file formats and technical procedures supported by Choco. Distributor-specific customizations may be possible subject to additional charges. A. ransmission Content It is possible to transmit diferent components through an Integration, such as orders, Product Catalog, prices, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. he standard transmission content is the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date. Parties will agree on the transmission content in the technical coordination meeting. Aer such meeting, there may be a possibility for adding more components to the scope subject to additional charges. B. Data ransmission Data transmission may consist of one or a combination of the following technical channels: 1. HTTP(s) API 2\. (S)FTP Server a) Hosting by Choco b) Hosting by the Distributor or a third-party provider 3\. Choco App for an ERP system (Connector) More details on the transmission channels are given below: 1\. HTTP(s) API Choco supports the following authentication: •Oauth 1.0 and 2.0 •Basic Auth •Open ID All other types of authentication (SAML, TLS, JWT,... ) require detailed technical review and may be subject to additional fees. Choco will keep all credentials strictly confidential and use them only for the purpose of Integration. Choco supports all common methods (GET, POST, PUT, PATCH) with a transmission of orders placed via POST and a retrieval of product catalogs via GET. Distributor will ensure endpoint availability throughout the entire term of the contract. Choco will repeat erroneous transmissions, but cannot guarantee a transmission in the absence of available endpoints. 2\. (S)FTP server a) Hosting by Choco Choco shall make a (S)FTP (SSH) server available and shall provide Distributor with username, password, URL and port. Distributor will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation. b) Hosting by the Distributor Distributor shall provide Choco with the username, password, URL and port of the (S)FTP server. Distributor shall ensure the availability of the endpoints throughout the entire term of the Agreement. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints. 3\. Choco-App for an ERP system (Connector) Choco provides system-side integration for selected ERP systems via an app or another standardized interface, whereby Choco builds a connector between the Cloud Service and Distributor’s ERP. C. File Formats Choco supports multiple file formats for the exchange: CSV, XML, JSON, TXT, Excel, EDI, X12. In the event there are unclear or missing specifications from the Distributor, Choco shall provide files in a standard format (including documentation). D.Technical Procedure 1\. Orders from Cloud Service to Distributor Aer the Integration is delivered (deployed in the production environment), Choco will send the orders to Distributor in real time via one of the transmission channels or shall make them available on an (S)FTP server. he Distributor shall import the orders in real time into its own ERP system. he purchase orders will follow the prescribed format, but will at a minimum contain (if not explicitly defined otherwise): •Order number (unique) •Product numbers (as specified by Distributor) •Distributor number 2\. Product catalogs from Distributor to Cloud Service Distributor shall regularly send a (complete and up to date) Product Catalog and/or Order Guides of its Customers to Choco or make them available via one of the selected transmission technologies. Choco shall import them in real time or at least every 24 hours (unless explicitly defined otherwise). Technical procedure for transmission of other components shall be agreed by the Parties. Unless agreed otherwise, both Parties shall use commercially reasonable eforts to transmit all components through Integration in real time. **Integration General Terms and Conditions** These Integration General Terms and Conditions (the "**Integration-GTC**") together with the Main Services Agreement (the “**MSA**”) govern Choco’s performance of Integration Services consisting of development of a technical infrastructure for digital transmission of information between the Cloud Service and Supplier’s enterprise resource planning (the “**ERP**”) system (the “**Integration**”) and the Parties’ obligations in relation to that. These Integration-GTC, together with the Annex-1 attached thereto, constitute an integral part of the Agreement entered into between Choco and Supplier. Capitalised terms not otherwise defined in these Integration-GTC shall have the meanings assigned to them in the Agreement. In the event of any inconsistency between these Integration-GTC and the Agreement, the order of precedence prescribed in the MSA shall apply. **1 Subject Matter of the Integration-GTC** 1.1 The subject matter of these Integration-GTC is the development of the Integration until its delivery to Supplier. Once accepted by Supplier, the Integration shall constitute a part of the Cloud Service. 1.2 Integrations built by or on behalf of the Supplier do not fall under the scope of these Integration GTC and Choco does not assume any responsibility for such integrations. 1.3 The services of Supplier’s ERP provider that are accessed through the Integration do not fall under the scope of the Agreement and are solely governed by the terms and conditions of the specific ERP provider. **2 Provision of the Integration Services** 2.1 If the Parties agree on a minimum number of active Customers for the launch of the Integration Services in the Order Form, then Choco will start to perform the Integration Services only once that minimum number is reached. A Customer shall be deemed active if it has placed at least one order with Supplier using the Cloud Service in the relevant calendar month (“Active Customer”). If the minimum number is not reached within twelve months from the Effective Date of the Agreement, either Party shall be entitled to terminate the Integration Services, unless Choco has already commenced with the performance of the Integration Services. 2.2 The Parties shall mutually agree on the scope and channel of Integration, based on the standard content, channels and file formats supported by Choco as described in Annex-1. In case of any subsequent additions or changes to the agreed-upon scope, Choco reserves the right to adjust the timelines and charge additional Fees taking into consideration any extra efforts required to implement the changes. 2.3 Supplier shall provide Choco with a distinct technical contact person from its ERP provider who shall have sufficient technical knowledge and capacity to cooperate with Choco for the provision of the Integration Services. 2.4 Upon request, Supplier shall provide and shall ensure that its ERP provider provides Choco with all information required by Choco for the provision of the Integration Services in a timely manner, including sample catalog files, sample order files, API docs, documentation related to the system environment as well as with staging credentials and access rights to its ERP system and the test environment. Supplier shall ensure that Choco only gets access and permissions to the agreed transmission content and not to any other information that is not necessary for the Integration. 2.5 If Supplier cannot provide any test environment, then Supplier shall alternatively provide Customer information with which Choco can perform integration tests. Unless delivery of the test results is automated, Supplier shall provide Choco with the test results. Supplier shall ensure that the provided test environment corresponds to the same technical parameters as the live product environment. Supplier will provide Choco with (test) access data of the selected authentication method. Any Choco Deliverables provided by Choco for the Integration Services as well as instructions regarding their use shall be deemed Confidential Information of Choco and Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. 2.6 Supplier shall inform Choco in a timely manner about any upcoming adjustments to its technical systems that could have an impact on the functionality of the Integration Services or the performance of Choco's obligations under the Agreement. **3 Acceptance Procedure** 3.1 Choco shall submit the Integration to Supplier for inspection and acceptance and shall notify Supplier about such submission. Supplier shall test and inspect the Integration for its conformity with these Integration GTC and shall do so within a reasonable period of time which shall not be longer than two (2) weeks. The Supplier shall notify Choco immediately of any defects in writing (email acceptable). 3.2 Supplier shall declare its formal acceptance in writing if the Integration is essentially in conformity with these Integration-GTC. Formal acceptance by Supplier may not be refused due to insignificant flaws or defects. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after formal acceptance, provided Supplier has notified Choco in writing thereof during the inspection of conformity and prior to formal acceptance. 3.3 If, within a period of three (3) weeks after submission of the Integration, Supplier no longer reports any more significant defects or if Supplier agrees to deployment of the Integration into production environment, then the Integration shall be deemed formally accepted. 3.4 With respect to defects that were known to Supplier at the time of formal acceptance, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to Supplier due to negligence or that were not reported by Supplier, Supplier will not be entitled to the rights related to defects as governed in section 10 of the MSA on Warranty, otherwise any defects that occur and notified to Choco after formal acceptance will be subject to section 10 of the MSA on Warranty. 3.5 If the Integration is delivered partially per component, the acceptance procedure shall apply mutadis mutandis to each part. **Annex 1 - Integration Services** This Annex sets out the standard scope of Integration, in particular the transmission content, transmission channels, file formats and technical procedures supported by Choco. Supplier-specific customizations may be possible subject to additional charges. **A. Transmission Content** It is possible to transmit different components through an Integration. At a minimum, an Integration will transmit orders from Cloud Service to Supplier and Product Catalogs from Supplier to Cloud Service. In addition to this minimum content, Choco supports transmission of prices, order comments, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. Parties will agree on the transmission content in the technical coordination meeting. After such meeting, there may be a possibility for adding more components to the scope subject to additional charges. **B. Data Transmission** Data transmission may consist of one or a combination of the following technical channels: **1. HTTP(s) API** **2. (S)FTP Server** **a) Hosting by Choco** **b) Hosting by the Supplier or a third-party provider** **3. Choco App for an ERP system (Connector)** More details on the transmission channels are given below: **1. HTTP(s) API** Choco supports the following authentication: •Oauth 1.0 and 2.0 •Basic Auth •Open ID All other types of authentication (SAML, TLS, JWT,... ) require detailed technical review and may be subject to additional fees. Choco will keep all credentials strictly confidential and use them only for the purpose of Integration. Choco supports all common methods (GET, POST, PUT, PATCH) with a transmission of orders placed via POST and a retrieval of product catalogs via GET. Supplier will ensure endpoint availability throughout the entire term of the contract. Choco will repeat erroneous transmissions, but cannot guarantee a transmission in the absence of available endpoints. **2. (S)FTP server** **a) Hosting by Choco** Choco shall make a (S)FTP (SSH) server available and shall provide Supplier with username, password, URL and port. Supplier will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation. **b) Hosting by the Supplier** Supplier shall provide Choco with the username, password, URL and port of the (S)FTP server. Supplier shall ensure the availability of the endpoints throughout the entire term of the Agreement. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints. **3. Choco-App for an ERP system (Connector)** Choco provides system-side integration for selected ERP systems via an app or another standardized interface, whereby Choco builds a connector between the Cloud Service and Supplier’s ERP. **C. File Formats** Choco supports multiple file formats for the exchange: CSV, XML, JSON, TXT, Excel, EDI, X12. In the event there are unclear or missing specifications from the Supplier, Choco shall provide files in a standard format (including documentation). **D. Technical Procedure** **1. Orders from Cloud Service to Supplier** After the Integration is delivered (deployed in the production environment), Choco will send the orders to Supplier in real time via one of the transmission channels or shall make them available on an (S)FTP server. The Supplier shall import the orders in real time into its own ERP system. The purchase orders will follow the prescribed format, but will at a minimum contain (if not explicitly defined otherwise): •Order number (unique) •Product numbers (as specified by Supplier) •Supplier number **2. Product catalogs from Supplier to Cloud Service** Supplier shall regularly send a (complete and up to date) Product Catalog and/or Order Guides of its Customers to Choco or make them available via one of the selected transmission technologies. Choco shall import them in real time or at least every 24 hours (unless explicitly defined otherwise). Technical procedure for transmission of other components shall be agreed by the Parties. Unless agreed otherwise, both Parties shall use commercially reasonable efforts to transmit all components through Integration in real time. ## **Integration Terms and Conditions** **Preamble** Choco operates the software solution Choco ("**Software**"), which enables Suppliers in the food industry to receive orders digitally, to view order histories with restaurant operators ("**Customers**") and to communicate efficiently with them. Choco and the Supplier have agreed to the Supplier’s use of the Software on the basis of an Order Form, including its annexes ("**Order Form**"), and the Software-as-a-Service General Terms and Conditions, including the annexes thereto ("**SaaS-GTC**"), which serve as the foundation for the operation and use of the Software. In connection with Choco’s operation of the Software and the Supplier’s use thereof, the Supplier intends to have Choco perform the integration services described more specifically in these Integration General Terms and Conditions, including the annexes thereto ("**Integration-GTC**"). NOW THEREFORE, in consideration of the foregoing, the Parties enter into the following agreement: **1 Other Applicable Provisions and Order of Priority** 1.1 If terms that are used in these Integration-GTC are not defined in these Integration-GTC but are defined in the SaaS-GTC, then these terms shall have the meaning ascribed to them in the SaaS-GTC. 1.2 In addition to the provisions of these Integration-GTC, the provisions of the Order Form and the SaaS-GTC shall apply mutatis mutandis to the services provided under these Integration-GTC. 1.3 If there are any inconsistencies between the Integration-GTC, the Order Form, the SaaS-GTC and the other applicable Special Provisions, then the relevant provisions will apply in the order of priority prescribed in SaaS-GTC. 1.4 To the extent that personal data is processed for the provision of services under these Integration-GTC, the data processing agreement stipulated in the SaaS-GTC shall apply. **2 Subject Matter of the Integration-GTC** 2.1 The subject matter of these Integration-GTC is Choco’s performance of the integration services ("**Integration Services**"), as described more specifically in **Annex 1,** in exchange for payment by the Supplier of the fees and commissions agreed to in the Order Form. 2.2 The following services are not the subject matter of these Integration-GTC: a. Choco’s operation of the Software, and the Supplier’s use of the Software, and b. the transmission of information and data - following the performance of the Integration Services - between the Parties viathe technical infrastructure that Choco creates for the Supplier in the course of performing the Integration Services. These services shall be governed exclusively by the SaaS-GTC and the Special Provisions applicable thereto. **3 Duties of Choco** 3.1 Choco shall perform the Integration Services specified in **Annex 1** in accordance with the provisions of these Integration-GTC. 3.2 If the Parties agree on a minimum number of users for the launch of the integration, then Choco shall be obliged to perform the Integration Services only when the agreed minimum number of the Supplier’s active Customers has been reached. A Customer shall be deemed active if it has placed at least one order with Supplier using the Software in the relevant calendar month. If the minimum number is not reached within twelve (12) months, then either party shall be entitled to terminate the these Integration-GTC without having to give notice, unless Choco has already commenced the performance of the Integration Services. 3.3 Choco shall provide the Supplier with documentation of the Integration Services as well as instructions regarding their use and shall do so in English and make them available online. The Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. No printed documentation will be provided by Choco. **4 Rights of Use** 4.1 In performing the Integration Services, Choco grants the Supplier the non-exclusive, revocable, non-sublicensable, non-transferrable right to use the Integration Services for the whole duration of the IP rights and in accordance with these Integration-GTC for the term of the Contract. The Supplier’s more extensive legal rights will remain unaffected. 4.2 Any components of the Integration Services that the Supplier could recognize as being subject to third-party rights, including open source licenses, will be excluded from the grant of rights and will be governed by the terms and conditions of the applicable third-party licence. Above all, any components that Choco discloses as third-party content in the Order Form, in the software, in the Integration Services or in accompanying text files will be deemed recognizable within the meaning of the previous sentence. **5 Duties of the Supplier** 5.1 The Supplier shall provide the cooperation services specified in **Annex 1.** 5.2 Upon request, the Supplier shall provide Choco with all information that is required for the integration, including all necessary documentation related to the system environment as well as any required access and access rights. 5.3 The Supplier shall without undue delay provide Choco with a product catalogue covering all products and product groups in the Supplier's overall product range ("**Product Catalogue**"). 5.4 The Supplier shall without undue delay provide Choco with the order records of all customer bases as well as the customer numbers and order lists or, optionally, the order history for the last two-hundred (200) days of those customers who place orders with the Supplier via the Software. 5.5 The Supplier shall inform Choco in a timely manner about any upcoming adjustments to its technical systems that could have an impact on the functionality of the Integration Services or the performance of Choco's obligations under the Contract (including obligations in connection with the operation of the Software on the basis of the SaaS-GTC and the Special Provisions applicable thereto). **6 Remuneration** The fees and commissions owed by the Supplier for the services are set forth in the Order Form. Unless otherwise expressly agreed, all invoiced amounts shall be due within two (2) weeks of invoicing. In case of late payment, Choco reserves the right to charge interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate but at the rate of 4% per annum for any period during which that base rate is below 0% (such interest being deemed to accrue from day to day and being compounded on the last day of each calendar month) from the due date to the date of actual payment. **7 Acceptance of the Integration Services** 7.1 The Integration Services to be provided by Choco in accordance with these Integration-GTC shall be formally inspected and accepted by the Supplier in accordance with the following provisions. 7.2 Choco shall provide the Integration Services to the Supplier for formal inspection and acceptance and shall notify Supplier about such provision. 7.3 The Supplier shall inspect the Integration Services for their conformity with the Integration-GTC and shall do so within a reasonable period of time, which does not exceed three weeks. The Supplier shall notify Choco immediately of any defects in writing (email acceptable). 7.4 The Supplier shall declare its formal acceptance in writing if the Integration Services are substantially in conformity with the Integration-GTC. Formal acceptance by the Supplier may not be refused due to insignificant flaws or defects. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after formal acceptance, provided the Supplier has notified Choco in writing thereof during the inspection of conformity with the Integration-GTC and prior to formal acceptance. 7.5 If, within a period of four (4) weeks after the provision of the Integration Services, the Supplier no longer reports any more significant defects for formal acceptance purposes or if the Supplier implements the Integration Services into productive operation, then the Integration Services shall be deemed formally accepted. 7.6 With respect to defects that were known to the Supplier at the time of formal acceptance, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to the Supplier due to negligence or that were not reported by the Supplier, the Supplier will not be entitled to the rights related to defects as governed under in section 8 below. **8 Warranty** 8.1 Choco shall, solely in accordance with the following provisions, provide warranties against any defects in the Integration Services and the remedies set out in this section constitute the Supplier’s sole and exclusive remedies for defects. 8.2 A "defect" will be deemed to exist where the Integration Service does not fulfill the functions and specifications conclusively stated in **Annex 1** or if these functions provide defective results so that the use of the Integration Service is impossible or greatly restricted. 8.3 The Supplier shall without undue delay notify Choco in writing about any defects that occur. It shall describe the defects in detail and attach all of its available information that is necessary or useful to enable Choco to analyze and remedy the defects. 8.4 If it turns out that a defect reported by the Supplier does not actually exist or is not attributable to the Integration Service, then Choco will be entitled to charge the Supplier for the expenses incurred in connection with the analysis and other processing, based on Choco's standard hourly rates. 8.5 If the Integration Services to be provided by Choco are defective, then Choco shall, at its choice and within a reasonable period of time after receipt of the Supplier's notice of defect, either remedy the Integration Services or deliver them again. Choco may also remedy the defect by issuing instructions to the Supplier by telephone, in writing or via e-mail or by offering a workaround solution. 8.6 If Choco fails to remedy or re-deliver in accordance with section 8.5, Choco will at its own discretion offer the Supplier a reasonable remedy (such as giving the Supplier a reasonable discount on the affected services or terminating the Contract), which shall be the Supplier’s sole and exclusive remedy against breach of warranty. 8.7 Except as expressly and specifically provided in this Contract, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract. 8.8 All claims by the Supplier shall become time barred upon elapse of the earlier of the statutory limitation period, or a period of twelve (12) months from the Supplier becoming aware of the fact or event giving rise to the cause of action. 8.9 The liability provisions set forth in section 8 of the SaaS-GTCs shall apply to the Integration Services. **9 Legal Defects, Third-Party Rights** 9.1 If a third party asserts an infringement of intellectual property rights against the Supplier due to the use of the Integration Services, then the Supplier shall inform Choco thereof without undue delay and shall relinquish the defence against such assertions to Choco. In doing so, the Supplier shall provide Choco with all reasonable support at the Supplier’s expense. In particular, the Supplier shall provide Choco in writing with all necessary information about the use and possible processing of the programs and shall provide Choco with the requisite documents for this purpose. 9.2 To the extent that third-party rights are infringed, Choco may, at its own choice, remedy the infringement by: obtaining from the third party, who is holding the intellectual property right, a licence or a right of use for the benefit of the Supplier that would suffice for the purposes of these Integration-GTC, or modifying the infringing Integration Service without materially diminishing its functions, or replacing the infringing Integration Service with another Integration Service, the contractually-compliant use of which does not infringe any intellectual property rights and does not materially diminish its functions, or updating the status of the Integration Service, the contractually-compliant use of which does not infringe any third-party intellectual property rights. **Annex 1 - Integration Services** **A. Transmission Content** By way of the Integration Services, Choco is creating a technical infrastructure for the Supplier to transfer orders digitally from its own Customers directly into its ordering system and also to confirm them electronically. Moreover, based on this technical infrastructure, it is possible to transfer complete and customer-specific product catalogs to Choco. A distinction can therefore be made between the following transmission content, the transmission of which takes place on the basis of such technical infrastructure: 1\. Orders from Choco to the Supplier 2\. Product catalogues from the Supplier to Choco 3\. Order confirmations from the Supplier to Choco In general, the components 1. ,2. and 3. can be used independently of each other, although a combination of 1. and 2. is recommended. After technical coordination and agreement, there is a possibility for additional Integration Services to facilitate the transfer of more content (e.g., Supplier data and invoice data). The Supplier shall provide Choco with the written technical documentation about the impacted systems and interfaces that are required for the Integration Services. **B. Data Transmission and File Formats** Data transmission may consist of any combination of the following technical channels: 1\. **HTTP(s) API (encryption, format and authentication are specified by the Supplier)** 2\. **Email** 3\. **(S)FTP Server** a. **Hosting by Choco** b. **Hosting by the Supplier or a third-party provider** 4\. **Choco App for an ERP system** The file formats for the exchange (EDI, JSON, XML, CSV,... ) are specified by the Supplier, and Choco will adapt to such specifications, provided that this is technically feasible. In the event there are unclear or missing specifications from the Supplier, Choco shall provide files in a standard format (including documentation). More details on the transmission channels are given below: 1\. **HTTP(s) API** Choco supports the following authentication: Oauth 1.0 and 2.0 Basic Auth Open ID All other types of authentication (SAML, TLS, JWT,... ) require detailed technical review. Choco will keep all credentials strictly confidential and use them only for the purpose of integration. Choco supports all common methods (GET, POST, PUT, PATCH) with a transmission of orders placed via POST and a retrieval of product catalogs via GET. Supplier-specific customizations are possible. The Supplier will ensure endpoint availability throughout the entire term of the Contract. Choco will repeat erroneous transmissions, but cannot guarantee a transmission in the absence of available endpoints. 2\. **Email** Choco supports sending customized files via email - these are an extension to Choco's existing order emails. 3. **(S)FTP server** **Hosting by Choco** Choco shall make a (S)FTP (SSH) server available and shall provide the Supplier with username, password, URL and port. The Supplier will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation. **Hosting by the Supplier** The Supplier shall provide Choco with the username, password, URL and port of the (S)FTP server. The Supplier shall ensure the availability of the endpoints throughout the entire term of the Contract. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints. 4\. **Choco-App for an ERP system** Choco provides system-side integration for selected ERP systems via an app or another standardized interface. To that end, the technical and legal details are based on the terms of use stored in the respective app. **C. Technical Procedure** **1 Orders from Choco to the Supplier** After the Integration Services have been performed, Choco will send the orders to the Supplier in real time via one of the transmission technologies or shall make them available on an (S)FTP server. The Supplier shall in a timely manner import the orders (within at least 24 hours) into its own inventory management system. The purchase orders will follow the prescribed format, but will at a minimum contain (if not explicitly defined otherwise): Order number (unique) Product numbers (as specified by the Supplier) Supplier number **2 Product catalogues from Supplier to Choco** Following the implementation of the Integration Services, the Supplier shall regularly send a (complete) product catalog and/or customer-specific product catalogues to Choco or make them available via one of the selected transmission technologies. Choco shall import them in real time or at least every 24 hours (unless explicitly defined otherwise) and provide a new version to the relevant Suppliers. Product catalogues or product lists contain at least: Product number Product name Product unit Product availability (min. binary available / not available) Product category Product ID for unique identification of the product List price of the product **3 Order confirmations from the Supplier to Choco** The Supplier shall send as a processing confirmation a document via a selected transmission technology to Choco. Choco shall process it in a timely manner (within at least 2 hours) and inform the ordering user about the confirmation. **D. Cooperation Services of the Supplier** **1 Preparation for commissioning** The Supplier shall provide Choco with a distinct technical contact person for the integration implementation. In preparation for an implementation, the Supplier shall provide sample files or clear documentation (in English) of the content specified in Annex 1 (A). Furthermore, the Supplier will provide Choco with (test) access data of the selected authentication method. If the Supplier cannot provide any test environment, then the Supplier shall alternatively provide customer data with which Choco can perform integration tests. Unless delivery of the test results is automated, the Supplier shall provide Choco with the test results. The Supplier shall ensure that the test environment provided by it corresponds to the same technical parameters as the live environment. **2 Commissioning** Choco and the Supplier shall determine a common time for commissioning (launching) the integration. In the alternative, the commissioning can also occur in phases (e.g., based on specific customer groups). For commissioning, the Supplier shall provide Choco with access data to its live environment. 1.1 ## White Label TCs Effective 15 July 2024 *Updated on 8 April 2025 to replace the term ‘Supplier’ with ‘Distributor’.* This White Label Terms and Conditions (the “**WL-TC**”) together with the Main Services Agreement (“**MSA”**) govern branding of the Choco's eCommerce app with Distributor’s name and logo (the “**WL-App**”), licensing of the WL-App to Distributor’s Customers and the operation and maintenance of the WL-App. The WL-TC constitutes a Service Specific Term and is incorporated into the Agreement entered into by and between Choco and Distributor by reference. Capitalized terms not otherwise defined herein shall have the respective meanings assigned to them elsewhere in the Agreement. In the event of any inconsistency or conflict between the WL-TC and the MSA, WL-TC shall prevail. **1. License Grant.** Choco hereby grants to Distributor a limited, revocable, non-exclusive, non-transferable license to use the WL-App, and grants Distributor the right to sublicense the WL-App to Distributor’s Customers during the term of the Agreement to access and use it solely for placing orders from Distributor and for communication with Distributor, subject to the Choco’s ToS (as defined below) and the terms agreed herein. The WL-App may not be used on behalf of or for the benefit of a third party other than Distributor. **2. Branding.** The WL-App will be branded with the Distributor's name and logo. It will include an acknowledgement as "Powered by Choco". Distributor is solely responsible for securing its own copyrights, trademarks and all other intellectual property rights for use of Distributor’s name and logo in the WL-App. **3. Hosting and support.** The WL-App will be operated, hosted and maintained by Choco and any customer support to Distributor’s Customers will be provided by Choco in accordance with Choco’s standard support policies. **4. App submission.** The WL-App will be submitted to the mobile application stores under Distributor’s developer account. Distributor is responsible for maintaining its developer accounts in good standing and for all associated costs. Distributor will provide Choco with administrator access to its developer account to submit the WL-App for listing on the respective application stores and to maintain the WL-App. **5. Marketing.** Distributor may market and promote the WL-App on any form of media, but shall not claim any ownership of the WL-App. **6. Use by Customers.** Distributor’s Customers shall not further sublicense nor distribute the WL-App, and use of the WL-App by the Customers shall be subject to Choco’s terms of service as determined by Choco (“Choco ToS). The WL-App will be provided to Distributor’s Customers and such individual end users who are personnel of the Customers, on a strictly “as is” basis, and for free (i.e. Distributor cannot charge its Customers for the WL-App licensed hereunder). Distributor will remain responsible and liable towards Choco for all of its Customers and their end users’ (whether authorized or not) use of the WL-App in accordance with Choco ToS and for their acts and omissions. Choco reserves the right to suspend Distributors’ Customers access to the WL-App in the event of any violation of Choco ToS. **7. Functionality of WL-App.** WL-App will enable Distributor’s Customers to communicate with the Distributor and place orders to Distributor. Choco may make additional functionalities available in the WL-App at its own discretion, but it makes no commitment or gives no guarantee to do so. Distributor acknowledges and accepts that not all of the functionalities available in the Choco's mobile app will be available in the WL-App and that Choco is under no obligation to make any additional functionalities available other than the ones indicated in the first sentence of this section. **8. Fees.** The Fees for making the WL-App available will be agreed in the Order Form signed between the Parties or elsewhere in writing. **9. Use by Distributor.** The terms of the MSA will continue to govern the use of the WL-App by Distributor and its Authorized Users. **10. Limitation of liability.** Choco’s warranties regarding use of the WL-App by Distributor’s Customers and its sole liability arising out of use of the WL-App by Distributor’s Customers are limited to those set out in the Choco ToS. Specifically, Distributor understands that the WL-App is provided to Distributor’s Customers on an “as is” and “as available” basis without any warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Distributor shall be solely liable towards its Customers for any amounts and claims beyond what is undertaken in Choco ToS. **11. Intellectual property.** Distributor acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the WL-App and all derivative works thereto. Distributor does not have any rights in or to the WL-App, except for the limited express rights granted in this WL-TC. **12. Indemnification by Distributor.** Distributor will indemnify, hold harmless, and defend Choco, its licensors, service providers, and their respective affiliates, directors, officers, agents, and employees, from and against any third party claim, suit, or proceeding arising out of or related to (i) any claims related to any infringement or violation of a copyright, trademark, trade secret, or confidentiality obligation by any Distributor branding and any other materials provided or published by Distributor on the WL-App, (ii) claims by Distributor’s Authorized Users or Customers, including claims related to unauthorized disclosure of personally identifiable or other private information, (iii) Distributor’s or its Customers’ and their users negligent acts or omissions in the operation of the WL-App, and their material breach of Distributor’s obligations, representations, warranties or covenants contained herein. **13. Miscellaneous.** Unless specifically set forth in this WL-TC, all references to the Cloud Service in the Agreement shall include the WL-App as well. Latest version Effective 16 September 2022 ## Data Processing Agreement Effective 7 May 2024 *Updated on 8 April 2025 to replace the term ‘Supplier’ with ‘Distributor’.* **Preamble** This Data Processing Agreement ("DPA") specifies the data protection obligations and rights of the Parties in connection with the personal data processed by Choco as a processor on behalf of Distributor when providing the Services as per the Agreement. For the purposes of this DPA "Data Protection Laws" means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data, including: (i) EU Regulation 2016/679 ("GDPR"); (ii) GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of Section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR; (iv) in the UK, the Data Protection Act 2018; (v) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC); and (vi) in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time; and the terms "data subject", "processing", "processor" and "controller" shall have the meanings set out in the Data Protection Laws. “Personal Data” has the meaning set out in Data Protection Laws but is limited to personal data processed by Choco acting as a processor on behalf of Distributor under the Agreement as further described in Annex 1 to this DPA below. **1. Subject and Scope of the Assignment** 1.1 Choco shall process the Personal Data which Distributor has provided directly or indirectly for the provision of the Services exclusively on behalf of, and in accordance with the instructions of Distributor, unless it is otherwise required by the applicable law. In such a case, Choco shall notify Distributor of such legal requirements prior to the processing, unless the relevant law prohibits such notification. 1.2 The processing of Personal Data by Choco on behalf of Distributor is specified in Annex 1 to this DPA. 1.3 The duration of the processing corresponds to the duration of the Agreement. 1.4 Distributor warrants and represents that it will provide the required information notices and obtain necessary consents under Data Protection Laws for lawfully making Personal Data available to Choco and for enabling Choco to lawfully collect, process and share Personal Data for the provision of the Services or as otherwise instructed by Distributor. In particular, Distributor shall provide necessary notices and obtain necessary consents under the Data Protection Laws to enable Choco to deploy tracking technologies on the devices of data subjects, and collect and process data from such devices to provide the Services. 1.5 The Distributor is responsible for ensuring that its instructions comply with applicable laws. If Choco believes that any Distributor instruction violates Data Protection Laws, it will inform the Distributor in writing. However, Choco shall not be liable for any claims arising from or in connection with processing activities carried out in accordance with the Distributor’s instructions. **2. Requirements of Personnel** 2.1 Choco shall ensure that all persons who are authorized to have access to Personal Data are either under a contractual obligation to maintain confidentiality or are under an appropriate statutory obligation of confidentiality when processing the Personal Data. **3. Processing Security** 3.1 Choco shall implement and maintain throughout the term of the Agreement appropriate technical and organizational measures specified in Annex-2 to this DPA ("TOM"), to ensure a level of protection of the Personal Data commensurate to the risk, taking into account the state of the art, the cost of implementation and, to the extent known to Choco, the nature, scope, circumstances and purposes of the processing of the Personal Data and the varying likelihood and severity of the risk to the rights and freedoms of the data subjects. Choco shall regularly assess the effectiveness of the TOMs and implement alternative measures if necessary for ensuring appropriate level of security. 3.2 It shall be incumbent upon Distributor to review the TOM taken by Choco, particularly to review whether these measures are also sufficient with regard to circumstances of the data processing that are not known to Choco. **4. Use of Sub-Processors and Data Transfers** 4.1 Distributor generally authorizes Choco to make use of the services of its affiliates and sub-processors when processing the Personal Data. 4.2 The current sub-processors which are engaged by Choco are listed in Annex 3 to this DPA. Choco shall impose substantially similar data protection obligations vis-a-vis its sub-processors which are no less protective than the ones set out under this DPA and will remain liable towards the Distributor for its sub-processors’ performance under this DPA. 4.3 Choco will update the list of sub-processors in Annex 3 to this DPA before authorizing a new sub-processor to process Personal Data on behalf of Distributor. If Distributor wants to receive an individual notification of an update to the list of sub-processors, it shall sign up to the notification mechanism available in Annex 3 to this DPA. If Distributor does not object within 14 days following Choco’s notification by sending an email to legal@choco.com, then the engagement shall be deemed approved. If Distributor objects, Choco shall be entitled, at its choice, to either provide the Services without using the rejected additional sub-processor or to terminate the Agreement. 4.4 Distributor authorizes Choco, its affiliates and its sub-processors to transfer, access or process Personal Data outside the UK or the European Economic Area ("EEA"), provided that the requirements for such transfer, access or processing under Data Protection Laws are complied with. **5. Rights of the Data Subjects** 5.1 Taking into account the nature of the processing of the Personal Data, Choco shall assist Distributor with appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Distributor’s obligation to respond to requests for exercising the data subject’s rights laid down in the Data Protection Laws. 5.2 Choco shall in particular: 1. inform Distributor without undue delay if a data subject contacts Choco directly with a request to exercise his/her rights; 2. provide Distributor upon Distributor's request with all information available to Choco regarding the processing of the Personal Data that Distributor needs to respond to the request of a data subject and that Distributor does not have itself; 3. correct, delete or restrict the processing of the Personal Data without undue delay upon the instruction of Distributor, unless Distributor is able to do so itself and it is technically possible for Choco to do so; 4. support Distributor to the extent necessary to receive the Personal Data processed in Choco’s sphere of responsibility - insofar as this is technically possible for Choco - in a structured, common and machine-readable format, insofar as a data subject asserts a right to data portability. **6. Support Obligations** 6.1 Choco shall notify Distributor without undue delay after becoming aware of a breach of Personal Data. The notification shall include a description, if possible, of the nature of the breach; the categories and approximate number of data subjects affected by the breach; the probable consequences of the breach; of the measures taken or proposed by Choco to remedy the breach of the protection of the Personal Data and, if applicable, measures to mitigate its possible adverse effects. 6.2 Choco shall investigate the cause of the breach and, where appropriate, take reasonable measures to mitigate its possible adverse effects. 6.3 If Distributor is obliged to inform the supervisory authorities and/or data subjects about the personal data breach, Choco shall assist the Distributor with complying with this obligation, taking into account the nature of processing and the information available to Choco. Any additional costs incurred by Choco in this context, which exceed statutory processor obligations under the applicable law shal be borne by Distributor. 6.4 Choco shall notify Distributor of any subpoena or other judicial or administrative order, process or proceeding seeking access to, or disclosure of, the Personal Data insofar as such notification is not prohibited by law. If Distributor is obliged to provide information to a supervisory authority regarding the processing of the Personal Data or to otherwise cooperate with such authorities, Choco shall support Distributor in providing such information insofar as Distributor does not have the information itself and reasonably cooperate with Distributor and with supervisory authorities, including granting the competent supervisory authority the necessary rights of access, information and inspection. 6.5 Choco shall provide reasonable assistance to Distributor regarding Distributor’s compliance with its obligations related to security of processing, data protection impact assessments and prior consultations with the supervisory authorities in each case taking into account the nature of the processing and information available to Choco. Any additional costs incurred by Choco in this context, exceeding the foreseen statutory processor obligations under the applicable law, will be borne by Distributor. **7. Data Deletion and Return** 7.1 Upon termination of the Agreement and written request from Distributor, Choco will either delete or return the Personal Data, unless Choco is obliged to continue storing the Personal Data under applicable law. 7.2 Some Personal Data may be archived in Choco’s back-up systems and such archived Personal Data will be deleted in accordance with Choco’s retention policy. Any Personal Data archived in backups will be isolated and protected from any further processing. For the period that the data is stored after the termination of the Agreement, the rights and obligations of the Parties under this DPA shall continue to apply. **8. Verifications and Audits** 8.1 Choco shall keep records of its processing activities performed on behalf of Distributor and make available to Distributor upon request these records or any other information necessary to demonstrate compliance with statutory processor obligations set out under the Data Protection Laws. 8.2 Choco shall allow for and contribute to audits, including on-site inspections, by Distributor or an auditor mandated by Distributor in relation to the processing of the Personal Data. The audits and on-site inspections shall not hinder Choco in its normal business operations and should not place an undue burden on Choco. In particular, on-site inspections at Choco for no specific reason shall not take place more than once per calendar year and only during Choco’s normal business hours. Distributor shall notify Choco of inspections in written or text form at least 30 (thirty) days in advance, providing Choco with reasonable information about the scope, duration, and inspection plan. Distributor and Choco shall cooperate in good faith and mutually agree on the scope, duration, and start date of the inspection. Any costs incurred by Choco for any on-site inspections which are not clearly disproportionate or excessive, will be borne by the Distributor. Any auditor mandated by Distributor shall be an independent contractor that does not compete with Choco and such auditor may not commence its work prior to having executed a non-disclosure agreement with Choco. **9. Miscellaneous** 9.1 Each Party’s and their affiliates’ liability taken together in the aggregate arising out of or related to this DPA whether in contract, tort, or under any other theory of liability, shall be subject to the limitation of liability provisions of the Agreement. 9.2 This DPA, including its annexes, constitutes an integral part of the Agreement between Choco and Distributor. If there are any inconsistencies between this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail. 9.3 Any amendments and/or side agreements to any parts of this DPA must be made in writing. This rule also applies to this written form requirement itself. The governing law and jurisdiction under the Agreement shall apply accordingly for any parts of this DPA. *\*no other changes than replacing "Supplier" with "Distributor"* **Annex 1 - Description of Personal Data Processing** **Purpose of data processing**Provision of the Onboarding and Support Services, Cloud Service and Integration Services**Nature and scope of data processing**Collection, processing, storage and transfer of Personal Data as necessary for provision and maintenance of the following Services: - Onboarding Services, such as setting up Distributor accounts and training AI powered order processing services, - Cloud Service, such as transmission of orders and messages, enabling sending communications via email and other available formats and provision of related analytics, operation of White Label App - Building an Integration between the Cloud Service and Distributor’s ERP and - any other services as may be instructed by Distributor. **Type of data**- Name - Email address - Phone number - Title and company name - Campaign message statistics - Any other personal data that may be provided by or collected on behalf of Distributor **Group of data subjects**- Distributor’s Authorized Users - Personnel of Distributor’s Customers - Personnel of potential customers of the Distributor, if applicable **Duration of processing**For the duration of the Agreement as further set out in Section 7 of DPA**Annex 2 - Technical and Organizational Measures** Choco, in its capacity as data processor, implements appropriate technical and organizational measures to ensure security and confidentiality of Distributor Personal Data. Choco regularly evaluates and may update the measures specified in this Annex at any time without notice, provided that such updates do not diminish the level of protection afforded to the Distributor Personal Data under the preceding version of this Annex. **1 Confidentiality** **1.1 Physical access control** Choco shall take appropriate measures to reduce the risk of unauthorized persons gaining access to data processing systems with which Distributor’s personal data are processed and used. Technical measures - Office Wi-Fi networks are protected through encryption protocols and the use of network access controls - Two separated networks—one for employees and one for guests— are maintained Organizational measures - Careful selection of hosting providers and review of their security protocols to ensure appropriate physical access controls are in place - Personnel access key controls **1.2 System access control** Choco shall take appropriate measures to prevent data processing systems from being used by unauthorized persons. Technical measures: - Login with username + password with multi factor authentication - Monitoring technology to help detect and prevent unauthorized access attempts - Mobile device encryption on company laptops - Distributor Personal Data encrypted at rest - Remote laptop management - Deployment of anti-virus software for laptops and other relevant systems Organizational measures: - Access permissions reviewed regularly - Policies on the use of company hardware - General policy on data protection and information security - Employees bound by confidentiality agreements **1.3 Data access control** Choco shall take appropriate measures to ensure that the persons authorized to use the data processing systems can only access the personal data subject to their access authorization Technical measures: - Erasure of data carriers on laptops before reuse. - Logging of access to important documents, especially when entering, changing and deleting data. - File shredder (min. level 3, cross cut) Organizational measures: - Role based access controls - Management of rights by system administrator - Reduction in the number of administrators - Closed area for sensitive documents **1.4 Separation control** Choco shall take appropriate measures to ensure that the Personal Data of Distributor collected for different purposes can be processed separately. Technical measures: - Logical and infrastructural segregation of data for different purposes in different databases - Segregation of environments based on purpose (development, testing, and production) Organizational measures: - Role based and attribute based access control measures to ensure access is limited by person, role, purpose and environment - Principle of least privilege for database access **2 Integrity** **2.1 Transmission control** Choco shall take reasonable measures to reduce the risk that the Personal Data of Distributor can be read, copied, modified or removed without authorization during electronic transmission or during their transport data carriers. Technical measures: - Email encryption - Distributor Personal Data encrypted in transit over public networks - Provision via encrypted connections such as sftp, https **2.2 Data input control** Choco shall take appropriate measures to ensure that it is possible to check and determine retrospectively whether and by whom personal data of the Distributor have been entered into data processing systems, changed or removed. Technical measures: - Possibility of technical logging of the entry, modification and deletion of personal data in critical systems. Organizational measures: - Role based access and edit rights **3 Availability and resilience** **3.1 Availability control** Choco shall take reasonable measures to ensure that the Personal Data of Distributor is protected against accidental destruction or loss. Technical measures: - Data backups in offsite locations - Continuous monitoring of production systems with associated alerting to staff members Organizational measures: - Selection of the hosting service provider based on criteria of reliability and compliance - Periodic re-evaluation of the hosting service provider - Business continuity and disaster recovery plan is in place and reviewed regularly - Multi-stage escalation paths are in place, supported by a 24/7 on-call team for rapid incident resolution **4 Procedures for regular review, assessment and evaluation** Choco shall implement procedures for regular review, assessment and evaluation of the effectiveness of technical and organizational measures to ensure the security of processing. **4.1 Data protection management** Organizational measures: - Information security policies and measures reviewed regularly to maintain their suitability and effectiveness - Central documentation of all procedures, regulations and guidelines on data protection with access for employees as required / authorized - Employees trained on and committed to confidentiality **4.2 Incident response management** Organizational measures: - Regular third-party penetration tests - Incident response plan is in place and responsibilities for handling incidents are clearly assigned - Documentation of security incidents and data breaches - Formalized process for handling requests for information from data subjects is in place **Annex 3 - Sub-processor List** You may find the list of sub-processors and the notification mechanism for new sub-processors at . ## **Annex 1 to the SaaS-GTC: Data Processing Agreement** This Data Processing Agreement ("**DPA**") specifies the data protection obligations and rights of the Parties in connection with the processing of personal data processed by Choco (hereinafter "**Contractor**") for the Supplier (hereinafter "**Customer")** under the Software-as-a-Service Agreement concluded between the Parties (hereinafter "**Main Agreement**"). For the purposes of this DPA "**Data Protection Laws**" means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 ("**GDPR**"); (ii) GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "**UK GDPR**"); (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR; (iv) in the UK, the Data Protection Act 2018; (v) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC); and (vi) in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003; in each case, as updated, amended or replaced from time to time; and the terms "**data subject**", "**personal data**", "**processing**", "**processor**" and "**controller**" shall have the meanings set out in the Data Protection Act 2018. **1 Scope of Application** When providing the services pursuant to the Main Agreement, the Contractor shall process personal data which the Customer has provided for the provision of the services and with regard to which the Customer acts as a controller or as a processor for other processors or controllers ("**Customer Data**"). If there are any inconsistencies between this DPA and provisions under the other agreements, specifically under the Main Agreement, then the provisions of this DPA shall take precedence. **2 Subject and Scope of the Assignment / Customer's Authority to Issue Instructions** 2.1 The Contractor shall process the Customer Data exclusively on behalf of, and in accordance with the instructions of, the Customer, unless it is otherwise required by applicable law. In such a case, the Contractor shall notify the Customer of such legal requirements prior to the processing, unless the relevant law prohibits such notification due to an important public interest. 2.2 The processing of Customer Data by the Contractor shall be carried out exclusively in the manner, to the extent of, and for the purpose specified in Annex 1 to this DPA; the processing shall relate exclusively to the types of personal data and categories of data subjects designated therein. 2.3 The duration of the processing corresponds to the duration of the Main Agreement. 2.4 The Contractor shall not transfer, access or process Customer Data outside the UK or the European Economic Area ("**EEA**") or engage sub-processors pursuant to section 5, unless the transfer or engagement is permitted by Data Protection Laws. 2.5 The instructions are set forth in the Main Agreement. The Customer shall be entitled to issue further instructions regarding the type, scope, purposes and means of processing Customer Data only if such instructions are required under applicable law. 2.6 Instructions shall be given in writing. The Customer shall confirm verbal instructions in writing. 2.7 If the Contractor is of the opinion that a Customer instruction violates this DPA, or Data Protection Laws, then it shall without undue delay inform the Customer thereof in writing. The Contractor shall be entitled to suspend the execution of such instruction until the Customer confirms it in writing. If the Customer insists on the execution of an instruction despite the concerns raised by the Contractor, then the Customer shall indemnify the Contractor against all damages and costs that it incurred due to the execution of the Customer's instruction. The Contractor shall inform the Customer of any damages asserted against it and any costs incurred by it and shall not acknowledge any claims of third parties without the Customer's consent and shall, at the Contractor's option, conduct the defense in consultation with the Customer or leave it to the Customer. **3 Requirements of Personnel** The Contractor shall ensure that all persons who are authorized to have access to the Customer Data are committed to confidentiality, or are under an appropriate statutory obligations of confidentiality when processing the Customer Data. **4 Processing Security** 4.1 The Contractor shall implement appropriate technical and organizational measures required to ensure a level of protection of the Customer Data commensurate to the risk, taking into account the state of the art, the cost of implementation and, to the extent known to the Contractor, the nature, scope, circumstances and purposes of the processing of the Customer Data and the varying likelihood and severity of the risk to the rights and freedoms of the data subjects. 4.2 The Contractor shall, in particular, take the technical and organizational measures ("**TOM**") specified at https://legal.choco.com/ukpremium#tom to this DPA before the start of the processing of the Customer Data and maintain them during the term of the Main Agreement and ensure that the processing of Customer Data is carried out in accordance with these measures. 4.3 It shall be incumbent upon the Customer to review the technical and organizational measures taken by the Contractor, particularly to review whether these measures are also sufficient with regard to circumstances of the data processing that are not known to the Contractor. 4.4 Since the technical and organizational measures are subject to technical progress, the Contractor shall be entitled and obliged to implement alternative, adequate measures in order not to fall below the security level of the specified TOM. If the Contractor makes significant changes to the specified TOM, then it shall inform the Customer thereof in advance. **5 Use of Sub-Processors** 5.1 The Contractor shall use the additional processors listed at https://legal.choco.com/ukpremium#subprocessor when processing the Customer Data. These sub-processors will be deemed approved upon conclusion of the DPA. 5.2 The Contractor may use further sub-processors for the processing of Customer Data subject to the following provisions: At least 30 days prior to the engagement of the additional sub-processor, the Contractor shall inform the Customer thereof in writing. If the Customer does not object within 14 days, then the engagement shall be deemed approved. 5.3 If the Customer objects, then the Contractor shall be entitled, at its choice, either to provide its services under the Main Agreement without using the rejected additional sub-processor or to terminate the Main Agreement and this DPA. The Contractor shall impose substantially the same data protection obligations on any additional sub-processor as apply to the Contractor under this DPA. 5.4 The Contractor shall be obliged to select and use only those further sub-processors that provide sufficient guarantees that the appropriate technical and organizational measures are implemented in such a way that the processing of the Customer Data is carried out in accordance with the requirements of the Data Protection Laws and this DPA. **6 Rights of the Data Subjects** 6.1 The Contractor shall take all reasonable technical and organizational measures to support the Customer in fulfilling its obligation to respond to requests from data subjects to exercise the rights to which they are entitled. 6.2 The Contractor shall in particular: a. inform the Customer without undue delay if a data subject should contact the Contractor directly with a request to exercise his/her rights in relation to Customer Data; b. provide the Customer, upon the Customer's request, with all information available at the Customer regarding the processing of Customer Data that the Customer needs to respond to the request of a data subject and that the Customer does not have itself; c. correct, delete or restrict the processing of Customer Data without undue delay upon instruction of the Customer, unless the Customer is able to do so itself and it is technically possible for the Contractor to do so; d. support the Customer to the extent necessary to receive the Customer Data processed in the Contractor's sphere of responsibility - insofar as this is technically possible for the Contractor - in a structured, common and machine-readable format, insofar as a data subject asserts a right to data portability with respect to the Customer Data against the Customer. **7 Other Support Obligations owed by the Contractor** 7.1 The Contractor shall report to the Customer, immediately after becoming aware of such a breach, any breach of the protection of Customer Data, in particular incidents resulting in the destruction, loss, modification, or unauthorized disclosure of, or unauthorized access to, Customer Data. The notification shall include a description, if possible: a. about the nature of the breach of the protection of the Customer Data, indicating, to the extent possible, the categories and approximate number of data subjects; b. about the probable consequences of the violation of the protection of the Customer Data; c. about the measures taken or proposed by the Contractor to remedy the breach of the protection of the Customer Data and, if applicable, measures to mitigate its possible adverse effects. 7.2 In the event of any breach of Customer Data protection, the Contractor shall without undue delay take all necessary and reasonable measures to remedy the breach of Customer Data protection and, if applicable, to mitigate its possible adverse effects. 7.3 If the Customer is obliged to provide information to a governmental agency or person regarding the processing of Customer Data or to otherwise cooperate with such agencies, then the Contractor shall be obliged to support the Customer in providing such information or in fulfilling other obligations to cooperate within the scope of its possibilities. 7.4 The Contractor shall support the Customer in complying with the obligations set out in Art. 32 GDPR to the extent that it is possible for the Contractor, taking into account the information available to the Contractor about the specific use of the Customer’s services. Any additional costs incurred by the Contractor in this context, exceeding the foreseen Contractor’s obligations under the applicable law, will be borne by the Customer. 7.5 In the event that the Customer is obligated to inform the supervisory authorities and/or data subjects pursuant to Arts. 33, 34 GDPR, the Contractor shall, to the extent possible, support the Customer upon its request to comply with these obligations. In particular, the Contractor shall be obliged to document all breaches of the protection of Customer Data, including all related facts, in a manner that enables the Customer to prove compliance with any relevant statutory notification obligations. Any additional costs incurred by the Contractor in this context, exceeding the foreseen Contractor’s obligations under the applicable law, will be borne by the Customer. 7.6 The Contractor shall support the Customer with the information available to it and within the scope of what is reasonable in any data protection impact assessments to be carried out by it and any subsequent consultations with the supervisory authorities pursuant to Arts. 35, 36 GDPR. Any additional costs incurred by the Contractor in this context, exceeding the foreseen Contractor’s obligations under the applicable law, will be borne by the Customer. **8 Data Deletion and Return** 8.1 The Contractor shall delete all Customer Data completely upon termination of the Main Agreement, unless the Contractor is obliged to continue storing the Customer Data under applicable law. 8.2 However, the Contractor shall be entitled to keep backup copies of the Customer Data for a period of 30 days, unless deletion of the Customer Data from these backup copies is required for technical reasons or with regard to Art. 32 GDPR. For this period, the rights and obligations of the Parties under this DPA with respect to the backup copies shall continue to apply, notwithstanding section 2.3. 8.3 Documentation that serves as proof of the proper processing of the Customer Data in accordance with the order shall be retained by the Contractor in accordance with the statutory retention periods beyond the end of this DPA. **9 Verifications and Checks** 9.1 The Contractor shall ensure and regularly monitor that the processing of the Customer Data complies with this DPA, the Main Agreement and the Customer's instructions. 9.2 The Contractor shall document the implementation of the obligations under this DPA in an appropriate manner and provide the Customer with all necessary evidence of the Contractor's compliance with the obligations under the Data Protection Laws and this DPA upon the Customer's request. 9.3 The Customer shall be entitled to review the Contractor with regard to compliance with the provisions of these DPA, in particular the implementation of the TOM themselves or by a qualified auditor bound to secrecy; including by means of reviews. The Contractor shall enable such reviews and shall contribute to such reviews by taking all appropriate and reasonable measures; including by granting the necessary access and access rights and providing all necessary information. 9.4 The reviews and inspections should, as far as possible, not hinder the Contractor in its normal business operations and should not place an undue burden on the Contractor. In particular, inspections at the Contractor for no specific reason should not take place more than once per calendar year and only during the Contractor's normal business hours. The Customer shall notify the Contractor of inspections in written or text form in a timely manner in advance. 9.5 In accordance with the provisions of the Data Protection Laws, the Customer and the Contractor are subject to public inspections by the competent supervisory authority. Upon request by the Customer, the Contractor shall provide the requested information to the supervisory authority and grant the latter the opportunity to examine it; this includes inspections at the Contractor's premises by the supervisory authority or the persons designated by it. In this context, the Contractor shall grant the competent supervisory authority the necessary rights of access, information and inspection. **10 Miscellaneous** 10.1 Amendments and side agreements to this DPA must be made in writing. This rule also applies to this written form requirement itself. 10.2 The governing law and jurisdiction under the Main Agreement shall apply accordingly for this DPA. **Annex 1 - Purpose, Nature and Scope of Data Processing, Type of Data and Group of Data Subjects** **Purpose of data processing** Provision of the software and the necessary logins as well as the contractually agreed services. **Nature and scope of data processing** ● Storage and provision of logins to the software ● Storage of names and address data of customers ● To the extent agreed, implementation of onboarding measures for the customer ● To the extent agreed, implementation of marketing measures for the customer **Type of data** ● Names ● Email addresses ● Passwords ● Addresses ● Phone numbers **Groupofdatasubjects** ●Customeremployees ●Customers’ownclientsorcustomers ●Potential clientsorcustomersofthecustomer,ifapplicable ## Service Description **Services Description** The following outlines the Services made available by Choco. Distributor shall be entitled only to those Services expressly set out in the applicable Order Form or otherwise agreed in writing by the Parties. Capitalised terms not defined herein shall have the meaning given in the Agreement. All Services are provided subject to Choco’s standard terms and conditions, unless expressly agreed otherwise in writing. **1. Cloud Services** Choco provides a modular, cloud-based software platform delivered on a software-as-a-service (SaaS) basis. The Cloud Services consist of core platform components and optional add-ons, as further described below. **1.1 CustomerHub** CustomerHub is the foundational customer relationship management (CRM) layer of the Choco platform. CustomerHub includes: - Centralised customer data management - Customer insights and segmentation - Account ownership and role assignment - Activity logging and engagement tracking - Fall-off and retention monitoring **1.2 eCommerce** Choco eCommerce provides a digital purchasing experience for customers through mobile and web-based storefronts. Features are grouped into three commercial packages: Base, Grow, and Advanced. Depending on the commercial package purchased, eCommerce may include: **Base** - Branded digital storefront (white label app) or Choco App - Product marketing and promotional tools - Customer favourites and reorder functionality - Automated and AI-driven product recommendations - Customer messaging and chat **Grow** - Includes all Base features, plus: - Branded digital storefront (web) **Advanced** - Includes all Grow features, plus: - Public branded storefront - Invoice presentation - Product Information Management (PIM) **1.3 SalesHub** SalesHub is the sales execution and enablement layer of the Choco CRM, built on CustomerHub, and supports end-to-end sales workflows. SalesHub includes: - Sales dashboards and reporting - Pipeline visibility and forecasting - Prospecting and lead management tools - Sales activity tracking and proposal management **1.4 OrderAgent** OrderAgent is an AI-powered solution for automated order capture and processing. OrderAgent enables the customer to: - Capture orders across multiple formats and channels - Process multilingual orders - Validate orders against inventory data - Enforce margin limits and commercial controls **2. Implementation Services** Choco may provide professional services to support the deployment, configuration and adoption of the Cloud Services, as specified in the applicable Order Form. **2.1 Onboarding Services** Onboarding Services include: - Project governance and delivery management - Discovery, requirements gathering, and solution scoping - Functional and technical solution design - Platform configuration, branding, and setup - Go-live support - Training and enablement materials **2.2 Integration Services** Integration services include: - Technical integration design, build, testing, and validation - Synchronisation of customer, product, catalogue, historical data import - ERP and third-party system integrations Integration scope, performance, and availability are dependent on the customer’s systems, data quality, and third-party providers. **2.3. Customer Success Services** Customer Success Services include: - Adoption and value optimisation support - Virtual training and change enablement - Platform reliability and integration monitoring - End-user support via live chat, email, and messaging channels Optional Customer Success Services, subject to separate commercial agreement, may include: - Business reviews and governance meetings - Onsite enablement and change management services - Administrative and operational support services - Data services, including data mapping, transformation, enrichment, and quality support - Advanced or custom reporting - Custom development and bespoke technical services - ERP upgrade, replacement, or re-integration support - [ Main Services Agreement ](#saas) - Service Specific Terms - [ • Integration-GTC ](#integration) - [ • White Label TCs ](#wl) - [ Data Processing Agreement ](#dpa) - [ Service Description ](#services)