Customer Agreement

Document Version 1.0 — Published January 09, 2021

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This Agreement is a legal agreement between the individual or company entering into the Agreement (the “Customer”, “you” or “your”) and Enclave Networks Limited, a limited liability company (08181759) incorporated in the United Kingdom with registered office Excalibur House, Langstone Business Park, NP18 2HJ (“Enclave”, “our”, “we” or “us”) (together the “Parties” and each a “Party”).

By clicking on “I agree” (or similar button or checkbox), you agree to be bound by the terms of this Agreement, and you acknowledge and accept the terms of our Privacy Policy. If you do not agree to the terms of this Agreement, you must immediately uninstall or cease using the Software, Cloud Services, Documentation and anything else we may make available to you under this Agreement.

1. Definitions and Interpretation

   1. In this Agreement the following words and phrases shall have the following meanings:

      • Account means the online account you register for via https://portal.enclave.io/register through which you can access the Cloud Services and other functionality.

      • Administrator means an Authorised User who has been granted administrative privileges in respect of the Software and Cloud Services by the Customer.

      • Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity.

      • Agreement means these terms and conditions, the schedules hereto and any document incorporated by reference.

      • Applicable Law means all laws and judgments of any relevant court of law and all (legally binding) regulations, directions, rules, guidance, orders, decrees and codes of conduct in each case issued or approved by any relevant regulatory authority and in each case of any jurisdiction, which are applicable to this Agreement or any Party or any activity of any Party, as amended and in force from time to time.

      • Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

      • Charges means the charges payable by you to us as detailed on the Portal and on our Website for the Software, the Cloud Services and any other paid-for functionality or services we may make available to you from time to time.

      • Cloud Services means the Portal and other associated cloud services that we make or may make available to you from time to time and as further described on the Website and in the Documentation.

      • Confidential Information in relation to each Party, means all information not publicly known and which is used in or otherwise relates to that Party’s business, customers or financial or other affairs, in each case existing in any form, whether or not marked “confidential information”, and all other information clearly designated by the disclosing party as “Confidential”.

      • Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679) (the “GDPR”); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC), the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

      • Documentation means the documentation made available to you by us from time to time via the Portal and/or on the Website in relation to the provision of the Software and Cloud Services, including set-up guides, handbooks and API and service descriptions.

      • Free Version means the version of our Software and Cloud Services that we may make available free of charge on a non-commercial basis at our complete discretion, as further described on our Website.

      • Force Majeure Event means an event which is beyond the reasonable control of the Party seeking to rely on such event including riot, civil unrest, military action, terrorism or war (whether declared or not) or threat of or preparation for war; damage to or destruction of premises or equipment, or breakdown of equipment, in each case not attributable to the Party seeking to rely on such event; interruption or failure of a utility service or telecommunications network and/or breakdown of plant or machinery; severe delays or disruptions to the use of railways, shipping, aircraft, motor transport or other means of public or private transport; any change in Applicable Law which materially impacts a Party’s ability to perform any obligation under this Agreement and/or significantly increases the costs to be incurred and/or effort to be expended by any Party in performing its obligations under this Agreement; earthquake, storm, fire, flood, landslide or other natural disaster; and industrial action, strikes or lock-outs by employees of third parties (excluding sub-contractors and suppliers of the Party seeking to rely on such event unless no substitute is reasonably available).

      • Insolvency Event means where a Party either (i) is unable to pay its debts as they fall due (ii) commences negotiations with creditors with a view to rescheduling any of its debts (iii) is, or begins to be put into administration, administrative receivership, receivership or is or begins to be wound up, or (iv) suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

      • Intellectual Property Rights means all patents, rights to inventions, copyright and related rights, moral rights, database rights, trade marks and trade names, rights to goodwill and to sue for passing off, rights in designs, rights in Confidential Information (including know-how and trade secrets (including trade secrets as defined by the EU Trade Secrets Directive EU 2016/943)) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications (and rights to apply) for, and renewals and extensions of and rights to claim priority from, such rights and all similar or equivalent rights and forms of protection which subsist or will subsist now or in the future in any part of the world.

      • Licence Key means a code provided by us to you in order for you to download and install the Software, and/or a code created by an Administrator within the Portal.

      • Portal means the web-based Enclave portal used and accessed by Administrators to manage the deployment of and access to the Software.

      • Privacy Policy means the Enclave privacy policy, as updated by us from time to time, available at https://enclave.io/privacy-policy.

      • Software means the Enclave software as further described in the Documentation.

      • Website means https://enclave.io/ as may be updated by us from time to time.

   2. In this Agreement:

      1. use of the singular includes the plural and vice versa, and use of any gender includes the other genders;

      2. a reference to a Party is to a party to this Agreement and includes that Party’s personal representatives, successors and permitted assignees;

      3. a reference to persons includes individuals, corporations, unincorporated bodies and associations which are recognised at law (whether or not having separate legal personality);

      4. a reference to a Clause is to the relevant clause of this Agreement, and a reference to an Appendix is to the relevant appendix to this Agreement;

      5. any reference to a statute, statutory provision or statutory instrument includes a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it as from time to time amended, extended, consolidated, re-enacted, replaced, superseded or otherwise converted, modified or incorporated into law;

      6. general words are not to be given a restrictive meaning because they are followed by examples, and any words introduced by the word “including” or any similar expression are to be construed as illustrative and shall not limit the sense of the related general words;

      7. “subsidiary” and “holding company” have the meanings given to these terms in s1159 Companies Act 2006; and

      8. any negative obligation of any Party shall be construed as if it were also an obligation not to permit the relevant act or thing, and any positive obligation of any Party shall be construed as if it were also an obligation to procure that the relevant act or thing be done.

   3. The headings and any table of contents in this Agreement are included for convenience only and are not intended to affect the interpretation of this Agreement.

   4. So far as possible all provisions of this Agreement should be interpreted in such a way that they are consistent with each other, but if there is any conflict or ambiguity between provisions of this Agreement, the order of precedence for this Agreement shall be as follows.

2. Rights and Licences

   1. Subject to your compliance with this Agreement and the obligations and restrictions set out herein, we grant you and your Affiliates:

      1. a worldwide, non-exclusive, fully paid, non-transferable licence to install and use the Software; and

      2. a non-exclusive right to access and use the Cloud Services and Documentation, for your own internal business purposes for the Term of this Agreement.

3. Our Obligations

   1. Subject to Clause 3.6 we shall provide the Software and the Cloud Services to you substantially in accordance with the Documentation, in accordance with all Applicable Law and with due care and skill. We may amend the Documentation in our sole and absolute discretion from time-to-time.

      1. Subject to Clause 3.6 we shall use reasonable endeavours to make the Software and Cloud Services available 24 hours a day, 7 days a week, except for:

         1. subject to Clause 3.2.2 planned maintenance, of which we shall provide advance electronic notice; and

         2. unscheduled maintenance performed outside the planned maintenance window referred to above provided that we have used reasonable endeavours to give you at least 2 hours’ notice of such unscheduled maintenance.

   2. We do not:

      1. warrant that the Software or Cloud Services will meet your requirements or that their operation or availability will be uninterrupted or error-free;

      2. warrant that the Software or Cloud Services are compatible with your or any third party’s software or equipment; or

   3. take responsibility 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 you acknowledge that the Software, Cloud Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

   4. Except as expressly set out in this Agreement, we expressly disclaim and exclude all representations or warranties of any kind, whether express or implied, to the maximum extent permitted by Applicable Law in relation to any aspect of the Software, Cloud Services and Documentation including without limitation, those concerning satisfactory quality or fitness for purpose.

   5. We may make new updates, releases, patches and upgrades available to you from time to time at our sole discretion. We may require you on reasonable advance notice to update your version of the Software if we no longer support previous versions.

   6. Any Free Version we make available is provided “as is” and “as available”. To the maximum extent permitted by Applicable Law, we make no warranties or guarantees either express or implied arising by law or otherwise in relation to the Free Version. For the avoidance of doubt Clause 5 shall not apply to the provision of the Free Version. We may modify, amend, remove or terminate the Free Version or any part thereof at our discretion. We will use all reasonable endeavours to notify you in advance.

4. Your Obligations

   1. You must register an Account with us in order to request Licence Keys, access and download the Software, access the Cloud Services. You must ensure that the information uploaded to and maintained on your Account, including contact information and billing information, is kept up to date at all times.

   2. You agree not to, and will not permit others to: (a) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Software; (b) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Software or Cloud Services; (c) violate any Applicable Laws, rules or regulations in connection with your access or use of the Software or Cloud Services; (d) remove, alter or obscure any of our proprietary notices (including any notice of copyright or trademark) or those of our affiliates, partners, suppliers or the licensors of the Software or Cloud Services; (e) use the Software or Cloud Services for any revenue generating endeavour, commercial enterprise, or other purpose for which it is not designed or intended; (f) use the Software or Cloud Services for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, product or software that we offer; (g) use any of our proprietary information or interfaces or other Intellectual Property Rights in the design, development, manufacture, licensing or distribution of any applications, accessories or devices for use with the Software or Cloud Services.

5. Charges and Payment

   1. In consideration for your use of and access to the Software, Cloud Services and Documentation, you shall pay the Charges to us on and in accordance with the terms of this Agreement.

   2. You shall pay each invoice submitted to you by us within 30 days of the date of such invoice to a bank account nominated in writing by us from time to time.

   3. Without prejudice to any other right or remedy that it may have, if you fail to pay us any sum due under this agreement on the due date:

      1. you shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.3.1 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%;

      2. we may suspend provision of the Software and Cloud Services until payment has been made in full.

   4. All sums payable to us under this agreement:

      1. are exclusive of VAT, and you shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and

      2. shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

   5. Enclave reserves the right to alter its Charges under this Agreement. The Customer will be given 28 days notice of an intended alteration to Charges. Payment for Charges will change 28 days following the date on which notification of an intended alteration to charges is given to the Customer. Where payments are facilitated through any automated payment mechanism, the Customer hereby gives authority to Enclave to make the necessary alterations to payments for Charges where Enclave has that authority and capability. Where Enclave does not have that authority and capability the Customer hereby agrees to make arrangements to ensure that payments for Charges are correct according to this Agreement.

6. Confidentiality

   1. Each of the Parties recognises that in the course of negotiating and/or performing this Agreement it may receive Confidential Information belonging or relating to the other Party.

   2. Subject to Clauses 3.3 and 3.4, each Party agrees in relation to the Confidential Information relating to the other Party:

      1. not to use such Confidential Information for any purpose other than the purpose for which it is made available under this Agreement;

      2. not to disclose such Confidential Information except to such of its employees and permitted sub-contractors who need to know such Confidential Information for the purposes of performing its obligations, and/or exercising its rights, under this Agreement; and

      3. to use reasonable care (and in any event not less than the care which it uses to protect its own Confidential Information) to keep, and to ensure that its employees and sub-contractors keep, all Confidential Information confidential.

   3. The obligations in this Clause 3 shall not apply in relation to:

      1. information which is or becomes public knowledge other than as a result of a breach of this Agreement or any other duty of confidentiality; or

      2. information which the Party using or disclosing such information:

         1. knew before it was first disclosed to it by or on behalf of the other Party, and in respect of which the Party using or disclosing such information was not under any other duty of confidentiality; or

         2. received from a third party entitle to disclose the same.

   4. Each Party shall be entitled to disclose Confidential Information to the extent it is required to do so:

      1. by any Applicable Law or by a Court, arbitral or administrative tribunal; or

      2. by any regulatory body (including any investment exchange), provided that, to the extent it is legally permitted to do so, it gives the other Party as much prior notice of such disclosure as possible and takes into account any reasonable requests of the other Party in relation to the form and content of such disclosure; or

      3. in order to give proper instructions to any professional adviser of such Party who has an obligation to keep such Confidential Information confidential.

   5. On expiry or termination for any reason of this Agreement, each Party shall return to the other Party, or destroy, any and all documents and materials in its possession or control which contain or reflect any Confidential Information relating to the other Party, and erase (without possibility of reconstitution) any Confidential Information relating to the other Party which it has stored in electronic form; each Party may require the other to certify its compliance with this Clause 3.5. Nothing in this Agreement shall require any Party to return or destroy any document, material or record which it is required to retain by Applicable Law or to satisfy the requirements of any relevant regulator.

   6. This Clause 3 shall survive the expiry or termination for any reason of this Agreement.

7. Proprietary Rights and Indemnification

   1. You acknowledge and agree that we and/or our licensors own all of the rights (including the Intellectual Property Rights) in the Software, the Cloud Services and the Documentation. Except as expressly stated herein, this Agreement does not grant you any rights (including the Intellectual Property Rights) in respect of the Software, Cloud Services or the Documentation.

   2. We confirm that we have all the rights in relation to the Software, Cloud Services and Documentation that are necessary to grant all the rights we purport to grant under, and in accordance with, the terms of this Agreement.

   3. You shall defend, indemnify and hold us harmless against all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Software, Cloud Services and/or Documentation.

   4. Subject to Clauses 7.5 and 7.6, we will indemnify you and keep you fully and effectively indemnified on demand from and against any and all claims made against you alleging that the permitted use of the Software or Cloud Services infringes the Intellectual Property Rights of a third party (an “IPR Claim”). Such indemnity will include all losses, damages, costs and expenses incurred by you as a consequence of or in connection with such claim. This indemnity shall not apply to our provision of or your use of the Free Version.

   5. Immediately upon becoming aware of an IPR Claim which might give rise to any liability on us to indemnify you under Clause 7.4, you will: (a) give us written notice of the IPR Claim; (b) allow us to assume the control and conduct of the defence and settlement of the IPR Claim; and (c) give us such assistance as we may reasonably require in the defence, settlement or compromise of the IPR Claim.

   6. The indemnity in Clause 7.4 will not extend to any IPR Claim which arises as a result of: (a) your use of the Software otherwise than in accordance with this Agreement and/or the Documentation; (b) any modifications to the Software or Cloud Services made by any person other than us, our employees or agents or any modifications made by any other person where such modifications have not been authorised by us; and/or (c) use of the Software or Cloud Services for a purpose not specified in this Agreement or otherwise contemplated by this Agreement.

   7. At any point after the occurrence of an IPR Claim, we may at our own option and expense: (a) procure for you the right to continue using the Software or Cloud Services in the manner contemplated by this Agreement; or (b) replace or modify the Software or Cloud Services so that it no longer infringes the rights of any third party (provided that any such replacement or modification of the Software or Cloud Services will not materially affect the functionality of the Software or Cloud Services); or (c) in the event that neither of the options 7.7(a) and 7.7(b) is available, we may terminate this Agreement.

8. Data Protection

   1. Each Party will comply with its respective obligations under the Data Protection Legislation. This Clause 8 is in addition to, and does not relieve, remove or replace, a Party’s obligations or rights under the Data Protection Legislation.

   2. The Parties acknowledge that for the purposes of the Data Protection Legislation, subject to Clause 8.3 you are the controller and we are the processor. Appendix 1 sets out the scope, nature and purpose of processing, the duration of the processing and the types of personal data and categories of data subject.

   3. The Parties acknowledge that we collect some personal data including technical and usage data in order to monitor and improve our services and Software, and we are the controller of such data. We will process this personal data in accordance with our Privacy Policy.

   4. Without prejudice to the generality of Clause 8.1, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of this agreement.

   5. Without prejudice to the generality of Clause 8.1, we shall, in relation to any personal data processed in connection with the performance of our obligations under this agreement:

      1. process that personal data only on your documented written instructions unless we are required by Applicable Law to otherwise process that personal data. Where we are relying on the laws of a member of the European Union or European Union law as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Law unless the Applicable Law prohibits us from so notifying you;

      2. immediately inform you if, in our opinion, an instruction infringes the Data Protection Legislation;

      3. ensure that we have in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;

      4. ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

      5. not transfer any personal data outside of the European Economic Area unless your prior written consent has been obtained and the following conditions are fulfilled:

         1. either Party has provided appropriate safeguards in relation to the transfer;

         2. the data subject has enforceable rights and effective legal remedies;

         3. we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

         4. we comply with reasonable instructions notified by you to us in advance with respect to the processing of the personal data;

      6. assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

      7. notify you without undue delay on becoming aware of a personal data breach;

      8. at your written direction, delete or return personal data and copies thereof to you on termination of the agreement unless required by Applicable Law to store the personal data; and

      9. maintain complete and accurate records and information to demonstrate our compliance with this Clause 8 and allow for audits by you or your designated auditor.

   6. You consent to us appointing third party processors of Personal Data under this agreement. We confirm that we have entered or (as the case may be) will enter with the third party processor into a written agreement incorporating terms which are substantially similar to those set out in this Clause 8 and in either case which we confirm reflect and will continue to reflect the requirements of the Data Protection Legislation. We shall inform you of any proposed changes to its third party processors to give you the opportunity to object. As between the Parties, we shall remain fully liable for all acts or omissions of any third party processor we appoint pursuant to this Clause 8.

9. Liability

   1. Neither Party excludes or in any way limits its liability for fraud or fraudulent misrepresentation, death or personal injury caused by its negligence, and/or any other liability to the extent such liability may not be excluded or limited as a matter of Applicable Law.

   2. Subject to Clause 9.1 neither Party shall be liable to the other under or in connection with this Agreement for any and all of the following, howsoever arising and whether foreseeable or in the contemplation of the Parties arising out of breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise:

      1. loss of income;

      2. loss of actual or anticipated profits;

      3. loss of goodwill or reputation;

      4. loss of anticipated savings;

      5. loss of, damage to or corruption of data and/or loss or theft of, or damage to, any medium on which data is stored (only to the extent the same is not a breach of Clause 6 or 8); in each case whether arising directly or indirectly; and/or

      6. indirect or consequential loss or damage of any kind.

   3. Subject to Clauses 9.1, 9.2 and 9.4, our aggregate liability to you in respect of each claim or series of related claims of any nature arising directly or indirectly out of or in connection with this Agreement (including as a result of breach of contract, negligence or any other tort, and/or in relation to any indemnity, under statute or otherwise) will be limited in respect of all incidents or series of incidents occurring in any one calendar year, to the greater of:

      1. £1000 (one thousand pounds); and

      2. the aggregate fees paid and/or payable under this Agreement in respect of the calendar year in which such claim (or series of incidents) occurs.

   4. Subject to Clauses 9.1 and 9.2 our aggregate liability to you in respect of any and all claims of any nature arising directly or indirectly out of or in connection with Clause 7 (Intellectual Property Rights) (including as a result of breach of contract, negligence or any other tort, and/or in relation to any indemnity, under statute or otherwise) will be limited in respect of each claim or series of related claims to £1,000,000 (one million pounds).

   5. No amounts awarded or agreed to be paid under 9.4 shall count towards the cap on our liability under Clause 9.3.

10. Term, Termination and Suspension

    1. This Agreement shall commence when you click “I agree” below and, subject to this Clause 10, shall continue in force for the Term.

    2. We may suspend your access to the Software and/or the Cloud Services immediately on notice to you:

       1. if you breach or we have reason to suspect you may have breached Clause 4.2; and

       2. if any Charges become overdue in accordance with Clause 5 and remain unpaid 30 days after we have given you notice that such Charges are overdue.

    3. If either of the suspension events set out in Clause 10.2 continue for longer than 30 days following the initial notification of suspension, this shall be considered an irremediable material breach for the purposes of Clause 10.5.

    4. You may terminate this Agreement at any time by providing us with at least thirty (30) days’ written notice.

    5. Either Party may terminate this Agreement with immediate effect if:

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

       2. the other Party suffers an Insolvency Event.

    6. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.

    7. On termination of this Agreement for any reason:

       1. all rights granted to you under this Agreement shall cease and you shall cease all activities authorised by this Agreement;

       2. you shall permanently delete and make no further use of any data, materials or other content obtained from us under this Agreement (and all copies of them);

       3. each Party shall return and make no further use of any other equipment, property, Documentation and other items (and all copies of them) belonging to the other Party;

       4. without prejudice to our obligations under Clause 8, we may retain your data for legal, regulatory, audit, and compliance reasons; and

       5. any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

    8. Unless this Agreement is terminated by us in accordance with Clause 10.3.1, from the effective date of termination of this Agreement we shall refund you on a pro rata basis any Charges that have been prepaid by you. If such termination is within the first 30 days of this Agreement we shall refund you all of your Charges.

11. Force Majeure

    1. No Party shall have any liability under this Agreement for any delay or non-performance of its obligations under this Agreement arising from any Force Majeure Event.

    2. The Party affected by any Force Majeure Event shall as soon as reasonably practicable notify the other Party of such event, the obligations which are affected by such event and its expected duration, and shall take all reasonable steps to mitigate the effects of such Force Majeure Event including reinstating and (re-)performing any obligation affected by any Force Majeure Event as soon as possible after such Force Majeure Event has ceased to apply.

    3. If a Force Majeure Event prevents a Party performing its obligations under this Agreement, then the other Party shall:

       1. not be liable to pay charges in respect of the Service or other obligation which is not performed; and
       2. be entitled to terminate this Agreement with immediate effect by giving the Party prevented from performance written notice, if the Force Majeure Event has prevented (or the other Party reasonably concludes that there is no reasonable prospect that the Force Majeure Event will not prevent) performance for more than thirty (30) days.

12. Entire Agreement

    1. This Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any previous agreements, discussions, correspondence, negotiations, drafts, promises, assurances, warranties, representations and/or undertakings between the Parties relating to any of such subject matter.

    2. Each Party acknowledges and agrees that in entering into this Agreement all statements, representations, warranties and undertakings on which it relies are incorporated into this Agreement and it does not rely on (and shall have no remedy in respect of) any statement, representation (including any misrepresentation), warranty or undertaking (whether negligently or innocently made) of any person (whether party to this Agreement or not) (in each case whether contractual or non-contractual) which is not expressly set out in this Agreement.

13. Dispute Resolution

    1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then except as expressly provided in this agreement, the Parties shall attempt in good faith to resolve the Dispute.

    2. If the Dispute is not resolved within 60 days after initial notification of the Dispute (or such other time period as the Parties may agree), either Party can submit the Dispute to be finally resolved by the courts of England and Wales in accordance with Clause 14.11.

14. General

    1. Assignment. Subject to Clause 9.5 neither Party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other Party.

    2. Variation. We reserve the right to vary the terms of this Agreement from time to time, and shall notify you electronically (for example, by emailing you or notifying you via your Account). Unless you notify us and exercise your right to terminate in accordance with Clause x within 14 days of our notification to you, your continued use of the Software and Cloud Services shall constitute acceptance of the varied terms.

    3. Waiver. No forbearance or delay by any Party in exercising or enforcing any right (and/or the continued performance of this Agreement) shall prejudice or restrict the rights of that Party, and no waiver of any right or of any breach of any contractual term shall be deemed to be a waiver of any other right or other breach. No single or partial exercise of any remedy shall restrict the further exercise of that or any other right or remedy. The rights and remedies provided by this Agreement are cumulative and, except as provided in Clauses 12 and 14.7, the rights and remedies provided in this Agreement are in addition to and not exclusive of any right or remedy provided by law.

    4. Severance. If and to the extent that any provision of this Agreement (or part of any provision) is found by any court or other authority of competent jurisdiction or agreed by the Parties to be invalid, unenforceable or illegal, that provision shall be deemed to be deleted and the other provisions shall remain unaffected and in full force.

    5. Conflict. If there is an inconsistency between any of the provisions of this Agreement and the provisions of the Schedules, the provisions of this Agreement shall prevail.

    6. No Partnership. Nothing in this Agreement shall be construed as constituting or evidencing any partnership, contract of employment or joint venture of any kind between the Parties. No Party shall have authority to make any representation for or act as agent for or in the name or on behalf of another Party in any way.

    7. Third Party Rights. Subject to the rights of your Affiliates to access the Software and Cloud Services on and subject to the terms of this Agreement, no term of this Agreement is intended to confer a benefit on or to be enforceable by any person who is not a party to this Agreement (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise).

    8. Notices. Any notice given under this Agreement shall be in writing and must be delivered personally, or sent by pre-paid first class post or other next Business Day delivery service or recorded delivery service, to the recipient Party at the address given at the start of this Agreement or such other address as has been notified by the recipient Party to the other Party in accordance with this Agreement.

    9. Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

    10. Governing Law. This Agreement (and any non-contractual obligations arising out of or in connection with it and any claim or dispute in relation to its formation) shall be governed by and interpreted in accordance with English law.

    11. Jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the English courts over any claim, dispute or matter arising out of, under or in connection with this Agreement (and any non-contractual obligations arising out of or in connection with it and any claim or dispute in relation to its formation).