Enigin PLC T&C

Enigin plc Standard Terms & Conditions of Appointment 3rd June 2009

Enigin plc Standard Terms & Conditions of Appointment 3rd June 2009 Enigin PLC. Southview House, St Austell Enterprise Park, Cornwall, PL25 4EJ United Kingdom.

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Enigin - Independent Distributor License Agreement

Standard Terms & Conditions of Appointment

3rd June 2009

Enigin PLC



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An Agreement IS MADE BETWEEN: (1) Enigin PLC a company registered in England under number 5984863 whose office is at

Southview House, St Austell Enterprise Park, Cornwall, PL25 4EJ, England hereinafter referred to as “the company” for the one part and: -

(2) The person, persons or company, hereinafter referred to as “the Licensee”, or “distributor”

named in the licence agreement entered into and signed by the partner which is subject to these Standard Terms of Appointment

WHEREAS: (A) The Company is the developer, manufacturer and/or provider of various products and

business solutions used in the field of energy saving and business efficiency. (B) The Company has agreed to appoint the Licensee as its Distributor in the territory for certain

of its products as defined in the licence agreement on the terms and conditions contained herein, subject to the Licensee achieving reasonable minimum sales as jointly agreed from time to time by both parties. No minimum sales will be required during the first full year (twelve months) following the licensee’s appointment.

IT IS AGREED as follows:

1. Definitions

In this agreement unless the context requires otherwise the following expressions shall have the following meanings:

“Courseware Products” those of the Products which are by their nature related to training course content and material and including methodology provided by the Company and used by the Licensee in the course of their business;

“Initial order” the Licensee's initial order for the items, as part of the initial

business establishment pack for either the basic or premium distributorship as referred to in the Licence agreement and set out in either schedule 3 or 4 of these Standard Terms, which are provided to the Licensee upon payment of the initial fee;

“Initial Fee” the amount paid by the Licensee to the Company upon granting

the Product Licence and Distribution Agreement as set out in the licence agreement:

“Schedule of payments” any amount of ongoing regular payments, which the Licensee

has, or at any time in the future may agree to make to the Company for future development and support;

“Intellectual Property patents, trade marks, service marks, registered designs, Rights” applications for any of the foregoing, copyright, database,

know-how, confidential information, trade or business names and any other similar protected rights in any country;



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“Invoice Price” in relation to the purchase of any of the Products, the amount invoiced by the Company to the Licensee excluding VAT and any other taxes, duties or levies and any transport and insurance charges included in such invoice;

“Products” the Hardware Products, Software Products and Courseware

Products and product training described in Schedule 1 and such other products as the parties may agree in writing from time to time;

“Product Documentation” the operating manuals and other literature accompanying the

Products for use by end-users; “ECOS” means the Enigin Collateral Ordering System, which is a web-

based e-commerce system of ordering and paying for products from the Company

“Software Products” those of the Products which are computer software; “Territory” the territory in which the Licensee is granted by the Company to

conduct business for the sale of the products;

2. Appointment

2.1 The Licensee shall perform their obligations under this Agreement in accordance with all reasonable instructions, which the Company may give the Licensee from time to time. The Company appoints the Licensee and the Licensee agrees to provide a Distribution outlet for the Company’s products.

2.2 The Licensees appointment shall commence only after written acceptance by the Company following the submission of a signed Licence Agreement subject to all the terms having been met and payment of the initial fee to the Company.

2.3 The Licensee shall not be entitled to assign any of its rights or obligations under this agreement without the written approval of the company.

2.4 The Licensee shall not be entitled to any priority of supply of the Products over the Company's other Licensees but the Licensee will be entitled to an allocation of production and delivery not worse than in sequence of delivery of orders to the Company.

2.5 The Licensee represents and warrants to the Company that it has the ability and experience to carry out the obligations assumed by it under this agreement and it has used due diligence in assessing the business potential, and taken appropriate advice as may be necessary.

3. Duration

The Licence agreement shall commence on the date of the Agreement for an initial period of ten years and shall continue for successive periods of ten years unless and until terminated by



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the licensee by giving to the Company not less than three months written notice, but shall be subject to earlier termination by the company following a serious breach of any of it’s terms as provided in this Agreement.

4. Sale and Purchase of the Products

4.1 The provisions of Schedule 2 shall apply forthwith.

4.2 If there shall be any inconsistency between the provisions of Schedule 2 and the other provisions of this agreement then the latter shall prevail.

5. Training

5.1 The Company shall provide training in the use, installation and maintenance of the Products for the Licensee's personnel in the manner specified in Schedule 3.

5.2 Any additional training required by the Licensee at the Licensees premises shall be provided by the Company in accordance with its standard scale of charges in force from time to time (subject to the provisions of Schedule 2 paragraph 2.1).

5.3 The Licensee shall offer training and support for the Products to all its customers and shall use its reasonable endeavours to persuade them, where relevant, to complete appropriate training in accordance with the Company's minimum recommendations from time to time.

6. Licensee's Obligations

The Licensee shall:

6.1 In all ways act loyally to the Company and use their best endeavours to promote and extend the sale of the Products, and use due diligence and good professional judgement to ensure that all client equipment is properly surveyed and the Products are installed only on suitable applications.

6.2 promptly inform the Company of any facts or opinions of which the Licensee becomes aware which are likely to be relevant to the commercial exploitation of the Products in the Territory and which are either advantageous or disadvantageous to the interests of the Company;

6.3 at all times conduct its business in a manner which will reflect favourably on the Products and on the good name and reputation of the Company;

6.4 not by itself or with others knowingly participate in any illegal, deceptive, misleading or unethical practices which may be detrimental to the Products, the Company or the public interest;

6.5 if any dispute shall arise between the Licensee and any of its customers in respect of the Products (or their installation or maintenance) promptly inform the Company and comply with all reasonable directions of the Company in relation thereto;

6.6 at all times employ a sufficient number of full-time technical support and sales staff having sufficient training and expertise properly to display, demonstrate, sell and instruct



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customers in the installation and use of the Products and capable of addressing customer enquiries and needs regarding the Products;

6.7 at all times maintain adequate demonstration facilities for the Products and maintain such stocks of the Products as may be necessary to meet its customers' requirements.

6.8 supply to the Company such reports, returns and other information relating to orders and projected orders for the Products as the Company may from time to time reasonably require, and hereby irrevocably grant to the Company access via Nucleus and all associated software business development programmes and courseware products (including the Company’s web-based customer relationship management programme) to the Licensees business activities performed under this Agreement, which in the reasonable opinion of the company may be beneficial to the Licensee or the Company;

6.9 provide the Company with quarterly stock reports showing the Licensee's stock of each of the Products at the beginning and end of each quarter and the movement of stocks during the quarter;

6.10 provide the Company with such financial information relating to the Licensee's business dealing with the Products as may be necessary for the Company to establish and maintain a credit limit for the Licensee from time to time;

6.11 not make any promises or representations or give any warranties or guarantees in respect of the Products except such as are consistent with those which accompany the Products or as expressly authorised by the Company in writing;

6.12 use the Company's trade marks and trade names relating to the Products only in the registered or agreed style in connection with the marketing and sale of the Products and not use such trade marks or trade names in connection with any other products or services or as a part of the corporate or any trade name of the Licensee;

6.13 not advertise or promote in any way the Company or it’s Products on the Internet or world wide web other than via the provision of the standard generic end user web-site as provided by the Company to Premium Distributors as part of the initial business establishment pack;

6.14 except with the Company's prior consent not alter, obscure, remove, interfere with or add to any of the trade marks, trade names, markings or notices affixed to or contained in the Products or the Product Documentation at the time at which they are delivered to the Licensee;

6.15 except with the Company's prior consent not alter or interfere with the Products or the Product Documentation;

6.16 be responsible for the proper installation of the Products save where installation can readily and easily be undertaken by the customer in accordance with the instructions set out in the Product Documentation and the



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customer indicates that they wish to undertake installation themselves;

6.17 not offer or undertake any maintenance services in respect of the Software Products that it does not have either the expertise or authority from the Company to do;

6.18 provide an efficient after sales service in respect of the Products;

6.19 observe all applicable laws and regulations in respect of and obtain all necessary licences, consents and permissions required for the storage, marketing and sale of the Products in the Territory ensuring that the Products comply with local laws, regulations and safety standards relating to their sale and use in the Territory;

6.20 co-operate with the Company in the recall of any of the Products for safety checks or modifications;

6.21 pay for all expenses of and incidental to the Licensee’s business including (without prejudice to the generality of the foregoing) all Stationery supplied to the Licensee (with the exception of that initially supplied without charge to the Licensee as hereinafter provided in schedule 4)

7. Company's Obligations

The Company shall:

7.1 provide the Licensee with such marketing and technical assistance that the Company is reasonably able, to assist the Licensee with the promotion of the Products;

7.2 endeavour to respond as soon as possible to all technical queries raised by the Licensee or its customers concerning the use or application of the Products;

7.3 provide the Licensee, at the Licensee’s expense, with adequate quantities of all available instruction manuals, technical and promotional literature and other information relating to the Products;

7.4 give reasonable advance written notice of any significant change to any of the Products or of the Company's intention to discontinue selling any of the Products to the Licensee;

7.5 offer to the Licensee for inclusion in the Products any product of the Company which can reasonably be regarded as a replacement for or successor to any Product which the Company discontinues selling pursuant to clause 10.2;

7.6 provide the Licensee promptly with all information and assistance necessary to enable the Licensee properly to perform its obligations under this Agreement in respect of any modified or enhanced versions of the Products;

7.7 Not supply and make a charge to the Distributor for any items which the Distributor has not expressly ordered.



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8. Intellectual Property Rights

8.1 All Intellectual Property Rights in or relating to the Products and the Product Documentation are and shall remain the property of the Company or its licensers.

The Licensee shall:

8.2 not cause or knowingly permit anything which may damage or endanger any of the Intellectual Property Rights or assist others to do so;

8.3 notify the Company immediately if the Licensee becomes aware of any illegal or unauthorised use of any of the Products or the Product Documentation or any of the Intellectual Property Rights in or relating to the Products or the Product Documentation and assist the Company (at the Company's expense) in taking all steps necessary to defend the Company's rights therein;

8.4 affix such notices to the Products or their packaging or advertising associated therewith or the Product Documentation as the Company may legally or statutorily be required so to do;

8.5 indemnify the Company for any liability incurred to third parties for any misuse by the Licensee and its customers of the Products or the Product Documentation or any of the Intellectual Property Rights in or relating to the Products or Product Documentation otherwise than in accordance with this agreement; and

8.6 acknowledge that any goodwill or reputation for the Product generated by this agreement will belong to the Company and upon termination of this agreement for whatever reason the Licensee shall not be entitled to claim recompense or compensation for such enhanced goodwill or reputation. The provisions of this clause shall survive the termination of this agreement.

8.7 Not use in the course of their business any promotional or technical literature relating to the Products other than that published and supplied by the Company. Nor reproduce any of the Company’s written material or Enigin trade marks or product branding for use in the advertising promotion or sale of the Products without the prior written approval of the Company.

9. Confidentiality

9.1 Neither party shall use or divulge or communicate to any person (other than those whose province it is to know the same or as permitted or contemplated by this agreement or with the written authority of the other party or as may be required by law) any of the following: -

A. any confidential information concerning the products, customers, business, accounts, finance or contractual arrangements or other dealings, transactions or affairs of the other party and its subsidiaries which may come to the first party's knowledge during the continuance of this agreement; or



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B. any of the terms of this agreement, and each party shall use its best endeavours to prevent the unauthorised publication or disclosure of any such information or documents and to ensure that any person to whom such information or documents are disclosed by such party is aware that the same is confidential to the other party.

9.2 Not at any time whether during or after the term of the Distributor Agreement divulge or use any unpublished technical information deriving from the Company or any other information in relation to the Company's affairs or business or method of carrying on business

9.3 Each party shall ensure that its employees are aware of and comply with the confidentiality and non-disclosure provisions contained in this clause and shall indemnify the other party against loss or damage which the other may sustain or incur as a result of any breach of confidence by any such party's employees.

9.4 If either party becomes aware of any breach of confidence by any of its employees it shall promptly notify the other party and give the other party all reasonable assistance in connection with any proceedings, which the other party may institute against any such employees.

9.5 The provisions of this clause shall survive the termination of this agreement but the restrictions contained in clause 9.1 shall cease to apply to any information which may come into the public domain otherwise than through unauthorised disclosure by the receiving party or its employees.

10. Reservation of Rights

The Company reserves the right:

10.1 to make modifications or additions to the Products or the Product Documentation or the packaging or finish thereof in any way whatsoever as the Company may in its absolute discretion determine;

10.2 to discontinue selling any of the Products to the Licensee; and

10.3 to require the Licensee not to use or to cease to use any advertising or promotional materials in respect of the Products which the Company considers not to be in the Company's best interests.

11. Territory

11.1 The Licensee shall refrain from seeking customers for the Products outside the Territory but the Licensee shall not be prohibited from fulfilling any unsolicited orders actually placed by such customers. The Licensee shall also refrain from establishing any branch or maintaining any distribution depot outside the Territory for the sale of the Products.

12. Legal Relationship

12.1 During the continuance of this agreement the Licensee shall be entitled to refer to itself as authorised Distributor of the Company but such description shall be in accordance



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with the Company's policies in effect from time to time and before using such title (whether on the Licensee's business stationery, advertising material or elsewhere) the Licensee shall submit to the Company proof prints and such other details as the Company may require and the Company may in its absolute discretion grant or withhold permission for such proposed use.

12.2 The relationship of the parties is that of seller and buyer and nothing in this agreement shall render the Licensee a partner or agent of the Company in a legal sense. Where the term “partner” or “partnership” (as is increasingly more commonly employed in strategic business alliances) is used in connection with this business the intention is to demonstrate the close working relationship, i.e. two parties working together for mutual profit, and not the contractual relationship that exists between the Company and the Licensee. The Licensee is an independent Distributor buying and selling in its own name and at its own risk.

12.3 Nothing within the terms agreed between the parties constitutes a 'Franchise'. The Licensee must accept full responsibility, taking professional advice where appropriate to ensure they have the necessary experience, ability and resources to succeed within this business. The Company accepts no responsibility for the success or failure of the Licensee due to incompetence or lack of business expertise.

12.4 The Licensee shall not bind or purport to bind the Company to any obligation nor expose the Company to any liability nor pledge or purport to pledge the Company's credit.

13. Termination

Notwithstanding anything else contained in it, this agreement will automatically terminate without further notice to the Licensee if:

13.1 the Licensee shall (or shall threaten to) sell, assign, part with or cease to carry on its business or that part of its business relating to the distribution of the Products without previously notifying the Company in writing; or

13.2 the control (as defined for the purposes of Section 416 of the Income and Corporation Taxes Act 1988) of the Licensee shall be transferred to any person or persons other than the person or persons in control of the License at the date of this Agreement (but the Company shall only be entitled to terminate within the period of 60 days after the Company shall have been notified in writing of the change in control);

13.3 any material act or omission on the part of the Licensee which in the reasonable opinion of the Company may adversely effect it’s interests;

Termination by either party will be granted forthwith on giving notice in writing to the other if:

13.4 the other party commits any material or persistent breach



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of any term of this agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach (such request to contain a warning of such party's intention to terminate);

13.5 the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding-up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order.

14. Effect of Termination

On the termination of this agreement:

14.1 The Licensee shall not be entitled to any compensation (whether for loss of distribution rights, goodwill or otherwise) as a result of the termination of this agreement in accordance with its terms.

14.2 Each delivery of a consignment of the Products shall be regarded as a separate contract of sale and no one default in a delivery shall be cause for terminating this Agreement.

14.3 All rights and obligations of the parties under this agreement shall automatically terminate except for such rights of action as shall have accrued prior to such termination and any obligations which are expressly intended to come into or continue in force on or after such termination.

14.4 The Licensee shall be entitled to sell any of its stocks of the Products which have been fully paid for and which are required to fulfil any unperformed contracts of the Licensee outstanding at the date of termination (and to the extent and for that purpose the provisions of this agreement shall continue in effect).

14.5 The Licensee shall immediately eliminate from all its literature, business stationery, publications, notices and advertisements all references to it being authorised Licensee of the Company.

14.6 The Licensee shall at its own expense forthwith return to the Company or otherwise dispose of as the Company may instruct all technical and promotional materials and other documents and papers whatsoever sent to the Licensee and relating to the Products or the business of the Company (other than correspondence between the parties)

14.7 The Licensee shall cause the Software Products and Courseware Products to be erased from all computers of or under the control of the Licensee and shall certify to the Company that the same has been done.

14.8 All outstanding unpaid invoices in respect of the Products shall become immediately payable in place of the payment



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terms previously agreed between the parties. Any credit facility granted on ECOS will be cancelled and any overdrawn balance must be settled immediately.

14.9 The Company shall be entitled to repossess any of the Products which have not been paid for against cancellation of the relevant invoices (and the Licensee irrevocably licenses the Company, its employees and agents to enter any of the premises of the Licensee for such purpose); and

14.10 The Company shall have the option to purchase at is absolute discretion all or any unsold Products in the possession or under the control of the Licensee which have been paid for by the Licensee (and which are not required to fulfil any unperformed contracts of the Licensee outstanding at the date of termination) at the invoice price (or, if lower, the written down value of the Products appearing in the accounting records of the Licensee at the date of termination) subject to the Company paying all necessary VAT and other taxes duties or levies and paying the cost of and arranging transport and insurance. The Licensee shall give the Company all necessary assistance and co-operation for the purpose of giving effect to the provisions of this clause and of delivering the Products to the Company.

15. Liability

15.1 The Company warrants to the Licensee that the Products sold to the Licensee under this Agreement will comply with their published specifications and will be of satisfactory quality.

15.2 If the Company shall be in breach of the warranty set out in clause 15.1 its liability shall be limited to replacing the Products concerned or at its option refunding the price paid by the Licensee (subject to the Licensee returning the defective Products to the Company) or (if an abatement of the price is agreed with the Licensee) refunding to the Licensee the appropriate part of the price paid.

15.3 The Company shall have no liability to the Licensee under clauses 15.1 and 15.2 above: for any damage to or defects in any of the Products caused by fair wear and tear, improper use, maintenance or repair, negligent handling, failure to observe the instructions accompanying the Products or any alterations to the Products;

15.4 The Licensee agrees to seek professional advice on potential liability and maintain comprehensive public and product and employers liability insurance to the degree advised necessary given the size and extent of the Licensee’s business and the territory in which the Licensee operates.

15.5 Notwithstanding anything else contained in this agreement the Company shall not be liable to the Licensee for loss of profits or contracts or other indirect or consequential loss or damage whether arising from negligence, breach of contract or any other cause of action out of the subject matter of this Agreement.



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15.6 Except as expressly provided in this agreement no warranty, condition, undertaking, or term, expressed or implied, statutory or otherwise, as to the condition, quality, performance, merchantability, durability or fitness for purpose of the Products is given or assumed by the Company and all such warranties, conditions, undertakings and terms are hereby excluded.

15.7 The Licensee shall indemnify the Company and keep the Company fully and effectively indemnified against any and all losses, claims, damages, costs, charges, expenses, liabilities, demands, proceedings and actions which the Company may sustain or incur or which may be brought or established against it by any person and which in any case arise out of or in relation to or by reason of:

1 the negligence, recklessness or wilful misconduct of the Licensee in the performance of any of its obligations in connection with the installation and maintenance of the Products;

2 any unauthorised action or omission of the Licensee or its employees;

3 the manner in which the Licensee markets and sells the Products (unless authorised by the Company);

4 the independent supply by the Licensee of any products or services for use in conjunction with or in relation to the Products; or

5 any breach or alleged breach of any applicable laws or regulations relating to the storage, marketing or sale by the Licensee of the Products in the Territory.

15.8 If any claim is made against either party for which indemnification is sought under this clause, the indemnified party shall consult with the other and, subject to being secured to its reasonable satisfaction, shall co-operate with the other in relation to any reasonable request made by the other in respect of such claim.

16. Interpretation

In this Agreement unless the context otherwise requires:

16.1 words importing any gender include every gender;

16.2 words importing the singular number include the plural number and vice versa;

16.3 words importing persons include firms, companies and corporations and vice versa;

16.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;

16.5 reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;

16.6 the headings to the clauses, schedules and paragraphs of this Agreement will not affect the interpretation;

16.7 reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;



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16.8 any obligation on any party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;

16.9 any party who agrees to do something will be deemed to fulfil that obligation if that party procures that it is done.

16.10 In the case of conflict or ambiguity between any provision contained in the body of this Agreement and any provision contained in any schedule, the provision in the body of this Agreement shall take precedence.

17. Agency, Partnership

This Agreement shall not constitute or imply any legally binding partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this agreement.

18. Amendments

This Agreement may not be released, discharged, supplemented, interpreted, amended, varied or modified in any manner except by an instrument in writing signed by two Directors in the case of the Company and a duly authorised officer or representative of the Licensee.

19. Entire Agreement

The Licence Agreement and these Standard Terms and Conditions of Appointment supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter of this Agreement. However the obligations of the parties under any pre-existing non-disclosure agreement shall remain in full force and effect in so far as there is no conflict between the same. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.

20. Force Majeure

Notwithstanding anything else contained in this Agreement, neither party shall be liable for any delay in performing its obligations under it if such delay is caused by circumstances beyond its reasonable control (including without limitation any delay caused by any act or omission of the other party) provided however that any delay by a sub-contractor or supplier of the party so delaying shall not relieve the party from liability for delay except where such delay is beyond the reasonable control of the sub-contractor or supplier concerned. Subject to the party so delaying promptly notifying the other party in writing of the reasons for the delay (and the likely duration of the delay), the performance of such party's obligations shall be suspended during the period that the said circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay. Save where such delay is caused by the act or omission of the other party (in which event the rights, remedies and liabilities of the parties shall be those conferred and imposed by the other terms of this Agreement and by law):

21. Notices

21.1 All notices under this Agreement shall be in writing.

Notices shall be deemed to have been duly given:

21.2 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or

21.3 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or

21.4 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or



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21.5 on the tenth business day following mailing, if mailed by airmail, postage prepaid;

21.6 in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.

22. Schedules

The provisions of Schedules 1-3 shall form part of this Agreement as if set out herein.

23. Severance

If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

24. Successors and Assignees

24.1 This agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assignees, and references to a party in this Agreement shall include its successors and permitted assignees.

24.2 In this Agreement references to a party include references to a person who for the time being is entitled (by assignment, novation or otherwise) to that party's rights under this Agreement (or any interest in those rights); or who, as administrator, liquidator or otherwise, is entitled to exercise those rights,

24.3 and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that party. For this purpose, references to a party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.

25. Waiver

No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of this Agreement shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this Agreement. No right, power or remedy in this Agreement conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party.

26. Counterparts

This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.

27. Language

This Agreement is made only in the English language. If there is any conflict in the meaning between the English language version of this Agreement and any version or translation of it in any other language, the English language version shall prevail.

28. Costs and Expenses

Each party shall bear its own legal costs and other costs and expenses arising in connection with the execution and registration (if applicable) of this Agreement.



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29. Set-off

Where either party has incurred any liability to the other party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each party may set off the amount of such liability against any sum that would otherwise be due to the other party under this Agreement.

30. Proper Law and Jurisdiction

30.1 The Licence Agreement and these standard product License and Distribution terms and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with non-exclusive jurisdiction at the English Courts notwithstanding the conflict of law provisions and other mandatory legal provisions save that:

30.2 the Company shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and

30.3 the Company shall have the right to sue for breach of its intellectual property rights and other proprietary information and trade secrets ('IPR') (whether in connection with this Agreement or otherwise) in any country where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the parties to be England.

30.4 The Licensee recognises that the Company’s business relies upon the protection of its IPR and that in the event of a breach or threatened breach of IPR, the Company could be caused irreparable damage and as such the Company may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.

30.5 With respect to all other disputes that are not IPR related, the aggrieved party shall notify the other party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other party. A representative from senior management of each of the parties ('representatives') shall meet in person or communicate by telephone within five business days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each party shall meet in person or communicate by telephone, to facilitate an agreement within ten business days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further five business days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either party may seek its legal remedies as provided below.

30.6 If the parties cannot resolve the dispute by the procedure set out above, the parties shall irrevocably submit to the



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non-exclusive jurisdiction at the English Courts for the purposes of hearing and determining any dispute arising out of this Agreement.

31. Miscellaneous

Where in the event of any dispute between the Licensee and any of the Company's other Licensees as to any of the provisions of these terms and conditions of appointment or such other business matters relating the Company’s affairs, then such dispute shall be referred to and determined by the Company whose decision shall be final and binding upon the parties concerned

SCHEDULE 1 Products The Products are those listed on the Enigin Collateral Ordering System ECOS, which are made available to the Licensee at the published prices, and on the specific terms of sale as detailed on ECOS site, which the Licensee has been granted access to and hereby confirms acceptance of any additional terms referred to thereon. SCHEDULE 2 Sales Terms 1 Orders 1.1 Each order for the Products submitted by the Licensee to the Company shall be in writing and/or

be ordered directly on the ECOS site shall stipulate the type and quality of the Products ordered and the requested delivery date and delivery destination.

1.2 Orders cannot be cancelled or modified once the order confirmation has been issued by ECOS 1.3 The Licensee shall be responsible for ensuring the accuracy of its orders. 2 Price and Payment 2.1 The price for each of the Products to be paid shall be as advertised on the ECOS site at the

time of ordering and as per the ECOS ordering confirmation regardless of any subsequent changes up or down. Any other extraordinary demands made by the Licensee to the Company must be agreed in writing prior to the services being provided.

2.2 All prices for the Products are exclusive of VAT or other applicable sales taxes, which shall be

paid by the Licensee at the appropriate rate. 2.3 Payment for the Products shall be as detailed on ECOS but at all times should be prior to the

dispatch of the Products or completion of services unless otherwise agreed. 2.4 The Company may sue for the price of the Products notwithstanding that the property has

passed to the Licensee. 2.5 Payment for the Products shall be made in pounds sterling and either by debiting the Licensees

credit account as shown on ECOS, Bank transfer or Credit Card as provided for on the ECOS site.

2.6 If payment for any of the Products is not received by the due date then (without prejudice to the

Company's other rights and remedies) the Company shall be entitled to:

2.6.1 suspend all further deliveries of the Products until payment is received; and 1.1.2 charge the Licensee interest on the unpaid sum on a day to day basis (as well after or



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before judgment) from the due date to the date of payment (both dates inclusive) at the rate of 4% above the base rate of Natwest Bank from time to time in force.

2.7 The Company reserves the right to suspend deliveries of the Products while the aggregate

amount of outstanding unpaid invoices exceeds the Licensee’s credit balance as updated on ECOS.

3 Deliveries 3.1 The Company shall use all reasonable endeavours to meet the delivery dates requested by the

Licensee but time of delivery shall not be of the essence and the Company shall have no liability to the Licensee if it fails to meet any requested or estimated date for delivery.

3.2 If the Company is unable to meet any requested delivery date it shall as soon as practicable

notify the Licensee of its estimated date for delivery. 3.3 Delivery of the Products will be at the Company's premises, or such other premises as the

Company shall notify the Licensee from time to time ('the delivery point'). 3.4 The Company shall bear the expense of putting the Products in the possession of the carrier at

the delivery point but the Licensee shall pay all other costs of transport and insurance. 3.5 If requested in the Licensee's order the Company shall arrange (as agent for the Licensee)

transport and insurance of the Products to the destination designated in the Licensee's order and shall obtain and promptly deliver to the Licensee the documents (if any) necessary for the Licensee or the Licensee's customer (as the case may be) to obtain possession of the Products. The Licensee shall reimburse the Company for all costs incurred by the Company in respect of the foregoing and all applicable provisions of this Schedule shall apply mutatis mutandis to the payment of such cost as they shall apply to the payment of the price for the Products.

3.6 The Company reserves the right to make partial deliveries of any consignment of the Products

ordered but unless otherwise agreed no delivery of the whole or any part of a consignment shall be made before the delivery date requested by the Licensee.

3.7 The Company will pack the Products suitable for delivery to the destinations requested by the

Licensee and each consignment shall be accompanied by supporting documentation. 3.8 The Licensee shall be responsible for obtaining prior to delivery all the necessary licences,

certificates of origin and other documents for the importation of the Products into the Territory and for paying all applicable import duties and other levies.

3.9 The Licensee shall notify the Company within 14 days after delivery of any consignment of the

Products of any shortage in the quantity ordered. The Company shall make good any such shortage as soon as reasonably practicable after written notice is received from the Licensee in compliance with this paragraph but otherwise the Company shall have no liability to make good such shortage.

4 Risk and Property 4.1 Risk in each consignment of the Products shall pass to the Licensee at the delivery point upon

placement of that consignment into the carrier's possession by the Company. 4.2 Ownership of property in any consignment of the Product shall not pass to the Licensee until

payment in full and in cleared funds has been received by the Company in respect of the price for that consignment and for all other consignments of the Products for which payment is then due.



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SCHEDULE 3 - PREMIUM This schedule sets out the precise details of the initial establishment pack and Mindshare training programme for the Premium distributorship. HARDWARE PACKAGE: THREE mobile Netbooks (small hand held ‘laptop’) branded with your own company logo and the ESA ‘mark of approval’. Also pre-loaded with Enigin’s mobile fact-find, product demo’s and interactive presentation. These are extremely practical and credible for Consultants who visit clients to conduct a fact find, generate proposals and demonstrate solutions. GBP18,950 worth of EnergyMaps Program equipment at retail. Enigin will provide you with all of the equipment needed to complete your first GBP18,950 worth of EnergyMaps sales subject to the following conditions: The EnergyMaps sale must be processed through Enigin’s Sales Proposal Builder on Nucleus (Enigin’s web based CRM) and must be approved in writing by Enigin’s Business Development Team Following approval the program must be exported to ECOS (Enigin’s Online Ordering System) and purchased at the full prevailing rate. No items may be removed or discounted Once the equipment has been installed an installation certificate must be sent to Enigin along with a signed statement from the customer on their own letter headed paper confirming that the installation has taken place and they are completely satisfied. On receipt of this documentation Enigin will credit your Distributor account with the full wholesale cost of the EnergyMaps program equipment. This does not include delivery charges The GBP18,950 worth of EnergyMaps equipment can be used on up to 5 individual clients. It gives you access to a maximum of 5 Eniscope systems and 5 E-Centive systems (comprising of a maximum of 15 E-Centive Packs, 50 E-Centive Staff Packs, 5 Executive Packs, 5 Poster Packs and 5 Customer Award Plaques). Any additional equipment will be charged at the prevailing rate The GBP18,950 worth of EnergyMaps equipment is available for up to 6 months following your approval as a Distributor THREE complete Eniscope 12 Automatic Monitoring & Targeting systems - includes local web server and one years web monitoring set up remotely by one of our experienced software Engineers on your selected trial sites. Enigin Branded iPod featuring Eniscope viewing software. Single phase iMEC Demonstration Unit installed in a portable case with both volt and ammeters for demonstrating to clients how retrofitting intelligent products to existing systems can produce substantial savings. Premium Product Sample Pack includes; 5xiMEC, 5xACES, 5xCUES, 5xLESS TRAINING PACKAGE: FIVE days comprehensive MINDSHARE residential training in the UK for one or two people (The Company will assist with co-ordinating hotel accommodation and transfers to the training venue, all costs incurred at the hotel will be the responsibility of each delegate. Refreshments and lunch will be provided each day during the training program, compliments of Enigin).



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To reinforce the critical elements within the training, all of the key learning points of the training program will be made available in digital format. Complete copy of the highly acclaimed Winning More Customers sales training course (DVD and Manual exclusively adapted for individuals in the Energy Saving Business). This will take you step by step through the whole presentation process. Access to Enigin’s very own Training Podcast Series from Internationally recognised business Guru Warren Greshes; on ‘How To Run A Successful Energy Saving Business’. FREE access to MINDSHARE-Monthly for the first year of your Distributorship, which is a live, interactive web cast hosted by Enigin’s MD Ian Wrigley FRSA, where we disseminate critical information based on time proven principles, unique techniques and real life examples from other Energy Saving Business owners with the sole objective of making you more successful. Hardcopies of the web casts are automatically posted to all Premium Distributors for future reference. After the first year, MINDSHARE-Monthly subscription will be charged at the prevailing monthly rate and can be cancelled at any time. During the MINDSHARE residential training course our Business Development Team will help you formulate a detailed Business Plan including Gantt chart with key milestones for the first 12 months of your new business. Enigin’s experienced Financial Manager can then help you generate a detailed profit & loss with cash-flow projections. Following the MINDSHARE training course each Premium delegate is given FREE automatic membership for the first year to the ESA. This credible association of commercial and technical experts from the field of Energy Management will prove to be an excellent readily available source for on-going training, development and support – 24/7. After the first year, ESA membership will be charged at the prevailing annual membership rate and will be payable monthly. It can be cancelled at the end of each annual membership period. After graduation from the MINDSHARE training course you will enjoy 3 months of personalised one-to-one follow-up field support training from Enigin’s Business Development Team (this dedicated Business Development will continue at the end of your first 3 months for a low monthly fee of £99 which you can cancel at any time). MARKETING PACKAGE: A complete suite of marketing materials incorporating your own new company Name/Logo and chosen style sheet. Enigin’s Graphic Designer will work with you to produce your very own unique high quality promotional material, which you will be able to carry away with you, ready to utilise within your new business, as soon as you return home. Inclusive of: Letterheads, Business Cards, Compliment Slips, Product Brochures, and even artwork for exhibition material for use in developing your business. Immediate benefit of the ESA Accreditation for use on Letterheads and promotional literature... a statement in itself that you a part of a professional and credible body. In addition to taking samples of your own stationary away with you, we will also provide a CD:ROM containing print ready graphics so that you will be able to reproduce further materials from a printer local to you, at the most cost effective price. Marketing & Lead Generation System with tried and tested principles proven over time from experts within our industry. Proven Google Adwords campaign, with a bespoke keyword & homepage plug-in combination for attracting new customers 24/7/365. We set everything up for you and provide an initial starting credit so it can start working for you while you are attending training. A range of Press Releases and White Papers to help launch your new business.



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Work with our in-house Web-developer to produce a customised website containing product demonstrations, videos, testimonials, test reports, downloadable brochures, supplied and hosted with your own logo and domain name. BUSINESS TOOLS PACKAGE: One year, 5 user license for Nucleus - our powerful, web-based Customer Relationship Management Tool. Nucleus is capable of delivering;

• Full Contact Database Management with Mail Merge • Smart Search facility • Calendaring • Task Assignment • Customer Pipeline Tracking & Management Statistics • Bespoke Fact Find & Sales Proposal Builder • Auto Responders & Email Scheduling • Real Time Website Editing • Energy Portal for remote set-up & monitoring of end-user consumption trends • Telesales Marketing Interface • Management Dashboard

Secure access to ECOS, Enigin’s online account management and ordering system, where you can obtain a full range of energy saving products, further promotional material and merchandise. Access to PeopleMaps, which is a powerful business tool for recruiting and developing the perfect team, and realising more business from your staff. Full set of Enigin bound manuals for incorporating, sales orders, technical & installation information, energy saving products data, application specific case studies, training & support and energy audits. SCHEDULE 4 - BASIC This schedule sets out the precise details of the initial establishment pack and Mindshare training programme for the Basic distributorship. HARDWARE PACKAGE: ONE mobile Netbook (small hand held ‘laptop’) pre-loaded with Enigin’s mobile fact-find, product demo’s and interactive presentation - extremely practical and credible for Consultants who visit clients to conduct a fact find, generate proposals and demonstrate solutions. ONE complete Eniscope 12 Automatic Monitoring & Targeting systems - includes local web server and one years web monitoring set up remotely by one of our experienced software Engineers on your selected trial sites. Single-phase iMEC Demonstration Unit installed in a portable case with both volt and ammeters for demonstrating to clients how retrofitting intelligent products to existing systems can produce substantial savings. Basic Product Sample Pack includes; 1xiMEC, 1xACES, 1xCUES, 1xLESS TRAINING PACKAGE: FIVE days comprehensive MINDSHARE residential training in the UK for one person (The Company will assist with co-ordinating hotel accommodation and transfers to the training venue, all costs incurred at the hotel will be the responsibility of each delegate. Refreshments and lunch will be provided each day during the training program, compliments of Enigin).



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To reinforce the critical elements within the training, all of the key learning points from the four day foundation training program will be made available in digital format. Complete copy of the highly acclaimed Winning More Customers sales training course (DVD and Manual exclusively adapted for individuals in the Energy Saving Business). This will take you step by step through the whole presentation process. Access to Enigin’s very own Training Podcast Series from Internationally recognised business Guru Warren Greshes; on ‘How To Run A Successful Energy Saving Business’. Automatic access to MINDSHARE-Monthly, which is a live, interactive web cast hosted by Enigin’s MD Ian Wrigley FRSA, where we disseminate critical information based on time proven principles, unique techniques and real life examples from other Energy Saving Business owners with the sole objective of making you more successful. Subscription to this service is charged at £49 a month and can be cancelled at any time. Following graduation from the MINDSHARE training course you automatically qualify for 1 years membership to ESA at the annual subscription price of £999. This credible association of commercial and technical experts from the field of Energy Management could thereby prove to be an excellent readily available source for on-going training, development and support – 24/7. ESA membership will be charged at £83.25 per month and can be cancelled after one year After graduation from the MINDSHARE training course you will enjoy personalised one-to-one follow-up field support training from Enigin’s Business Development Team for a low monthly fee of £99 which you can cancel at any time. BUSINESS TOOLS PACKAGE: One year, 1 user license for Nucleus - our powerful, web-based Customer Relationship Management Tool. Nucleus is capable of delivering;

• Full Contact Database Management with Mail Merge • Smart Search facility • Calendaring • Bespoke Fact Find & Sales Proposal Builder • Energy Portal for remote set-up & monitoring of end-user consumption trends

Secure access to ECOS, Enigin’s online account management and ordering system, where you can obtain a full range of energy saving products, further promotional material and merchandise. License for PeopleMaps, which is a powerful business tool for recruiting and developing the perfect team, and realising more business from your staff. Full set of Enigin bound manuals for incorporating, sales orders, technical & installation information, energy saving products data, application specific case studies, training & support and energy audits.

Documents

Enigin PLC T&C