YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF:
(a)CLAUSE 7 (THIRD PARTY PROVIDERS);(b)CLAUSE 8.2 (PROVIDER’S OBLIGATIONS);(c)CLAUSE 9 (CUSTOMER OBLIGATIONS);(d)CLAUSE 10.3 (PROPRIETARY RIGHTS);(e)CLAUSE 12 (INDEMNITY);(f)CLAUSE 13 (LIMITATION OF LIABILITY); AND(g)CLAUSE 16 (FORCE MAJEURE).
1) The Agreement
1.1
These Master Services Agreement along with each individual Order Form, the Data Processing Agreement (to the extent to which it is applicable as provided for in Clause 6.6 below), the Business Associate Agreement (to the extent to which it is applicable as provided for in Clause 6.7) and any other terms and policies of the Provider referenced herein, each as amended from time to time (the “Agreement”) constitute a legally binding agreement governing your access to, and the use of the Services (as defined below).
1.2
“The Agreement is between Teamwork Crew Limited (“Provider”, “us”, “we” or “our”) and you individually or, if you are entering into the Agreement on behalf of your employer or any other entity which you represent, such employer or entity (“Customer”, “you” or “your”). If you are entering into the Agreement on behalf of your employer or any other entity which you represent, you hereby warrant, represent and undertake that (i) you have full legal authority to bind your employer or such entity (as applicable) to the Agreement; and (ii) after reading and understanding the Agreement, you agree to the Agreement on behalf of your employer or the respective entity (as applicable), and this Agreement shall bind your employer or such entity (as the case may be).
1.3
YOU AFFIRM AND SIGNIFY YOUR CONSENT TO THE TERMS OF THE AGREEMENT, BY EITHER: (I) CLICKING ON A BUTTON OR CHECKING A CHECKBOX FOR THE ACCEPTANCE OF THESE TERMS; (II) REGISTERING TO, USING OR ACCESSING THE SERVICES; OR (III) YOUR ENTRY INTO AN ORDER FORM OR SIMILAR FORM REFERENCING OR OTHERWISE INCORPORATING THE AGREEMENT WHICHEVER IS EARLIER.
1.4
IF YOU DO NOT AGREE TO COMPLY WITH, AND BE BOUND BY, THESE TERMS OR DO NOT HAVE AUTHORITY TO BIND YOUR EMPLOYER OR OTHER ENTITY ON WHOSE BEHALF YOU PURPORT TO ENTER INTO THE AGREEMENT (AS APPLICABLE), PLEASE DO NOT ACCEPT THESE TERMS OR ACCESS OR USE THE SERVICES.
1.5
The Parties recognise that printed form purchase orders, invoices and other commonly used form documents relating to the performance of any obligations hereunder (other than the Order Form) may contain terms which conflict with one or more terms of the Agreement. In case of any such conflict, the relevant terms of the Agreement shall prevail.
1.6
The Provider may, in its absolute discretion, amend any of these Master Services Agreement at any time. Such amended Master Services Agreement, will be effective from the date upon which they are posted on the Provider’s website accessible at the following address https://www.teamwork.com/master-services-agreement-us/ and shall apply immediately to all Order Forms signed or Trials commenced after such effective date. Subject to the foregoing, any amendment to the Agreement must be in writing and duly signed for and on behalf of each of the Provider and the Customer.
2) Interpretation
2.1
In the Agreement:
“Affiliate” means in relation to a person, any other person which Controls, is Controlled by or is under common Control with that first person;
“Acquisition” means any transaction or series of related transactions for the purpose of or resulting, directly or indirectly, in:
(a)
the acquisition by the Customer or any member of its Group of any interest in any of the assets of any person, or any interest in any business, division or undertaking of any person or any shares in any person,
(b)
the acquisition by the Customer or any member of its Group of Control of any person, or
(c)
the acquisition by the Customer or any member of its Group of another person by a merger, consolidation, amalgamation or any other combination with such person;
“API” means an application programming interface which may be used by the Customer to interface with third party applications;
“Authorised Users” means those employees, agents, clients and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation;
“Business Associate Agreement” means the business associate agreement entered between the Provider and the Customer on or about the Effective Date in compliance of HIPAA;
“Confidential Information” means in relation to a Party’s obligations under the Agreement, non-public information that is proprietary or confidential to the other Party and is either clearly labelled as such or identified as Confidential Information in Clauses 11.6 (Provider confidential information) or 11.7 (Customer Data);
“Control” means possession of the power to direct or cause the direction of the management and policies of a person whether by membership, ownership, contract or otherwise and “Controlled”, “Controls” and other cognate words and expressions shall be construed accordingly;
“Confidential Information” means in relation to a Party’s obligations under the Agreement, non-public information that is proprietary or confidential to the other Party and is either clearly labelled as such or identified as Confidential Information in Clauses 11.6 (Provider confidential information) or 11.7 (Customer Data);
“Control Event” means:
(a)
a direct or indirect change of Control of the Customer or any parent company of the Customer, and
(b)
the entry by the Customer into an Acquisition;
“Customer Data” means the data inputted by the Customer or Authorised Users in the course of the Customer’s use of the Services;
“Data Protection Acts” means the Data Protection Acts 1988-2018, as amended, revised, modified or replaced from time to time;
“Data Processing Agreement” means the data processing agreement governing the processing of Protected Data by the Provider entered between the Provider and the Customer on or about the Effective Date;
“Data Protection Law” means all legislation and regulations relating to the protection of personal data including (without limitation) the Data Protection Acts (as amended, revised, modified or replaced from time to time), the GDPR and all other statutory instruments, industry guidelines (whether statutory or non-statutory) or codes of practice or guidance issued by the Data Protection Commission relating to the processing of personal data or privacy or any amendments and re-enactments thereof;
“Documentation” means all documents, demonstration materials, webinars, system user guides or other documentation and manuals made available to the Customer by the Provider online via www.teamwork.com or such other web address or other means notified by the Provider to the Customer from time to time which sets out a description of the Services and the user instructions for the Services;
“Effective Date” means the date specified as such in the Order Form;
“GDPR” means the General Data Protection Regulation (Regulation (EU) 2016/679);
“Group” means, in relation to any person, that person and its Affiliates;
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996;
“Holding Company” has the meaning given to it in Section 8 of the Companies Act 2014;
“Initial Subscription Term” means the initial term of the Agreement as set out in the Order Form;
“Intellectual Property Rights” means all patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all and other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;
“Loss” means any demand, claim, proceeding, suit, judgment, loss, liability, cost, expense, fee, penalty or fine;
“Order Form” means the form provided by the Provider’s sales team to the Customer and signed by the Provider and the Customer through which the Customer is to submit or has submitted each individual order for the Services;
“Parties” means the parties to the Agreement and each a “Party”;
“PHI” means protected health information as defined under HIPAA;
“Protected Data” has the meaning given to it in Clause 6.5;
“Relevant Charges” means each of:
(a)
the Subscription Fees,
(b)
the fees payable in respect of additional User Subscriptions purchased pursuant to Clause 3.6, and
(c)
the excess storage fees payable pursuant to Clause 5.5.
“Renewal Period”means the period described in Clause 14.1;
“Services” means the software subscription services (and any add-ons requested by the Customer including but not limited to teamwork chat) provided by the Provider to the Customer under the Agreement in respect of the Software via www.teamwork.com or any other website notified to the Customer by the Provider from time to time, as more particularly described in the Documentation;
“Software” means the online software applications provided by the Provider as part of the Services which are listed in the Order Form;
“Subscription Fees” means the subscription fees payable by the Customer to the Provider for the User Subscriptions, as set out in the Order Form;
“Subscription Term”means the Initial Subscription Term together with any subsequent Renewal Periods;
“Support Services Policy” means the Provider’s policy for providing support in relation to the Services as made available at www.teamwork.com or such other website address or such other means as may be notified to the Customer from time to time
“Termination Date” means:(i) where the Agreement is terminated or otherwise expires pursuant to Clause 14.1 and unless otherwise agreed in writing, the date of expiry of the Initial Subscription Term or the Renewal Period (as the case may be); and (ii) where the Agreement is terminated pursuant to Clauses 14.2 or 14.3, the date of notice of termination;
“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to the Agreement which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement; and
“Virus” means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.2
In the Agreement, unless the contrary intention is stated, a reference to:
(a)
the singular shall include the plural and vice versa;
(b)
Ia person shall be construed as a reference to any individual, firm or company, corporation, governmental entity or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing;
(c)
a person includes that person’s legal personal representatives, successors and permitted assigns;
(d)
time shall be construed by reference to whatever time may from time to time be in force in Ireland;
(e)
any agreement document or instrument is to the same as amended, novated, modified, supplemented or replaced from time to time;
(f)
‘the Agreement’ mean the Clauses of these Master Services Agreement and the provisions of the Order Form and, to the extent applicable, of the Data Processing Agreement and of Business Associate Agreement all of which shall be read as one document;
(g)
a Clause or other provision is a reference to a Clause or provision of these Master Services Agreement, and any reference to a sub provision is, unless otherwise stated, a reference to a sub provision of the provision in which the reference appears;
(h)
‘including’ means comprising, but not by way of limitation to any class, list or category;
(i)
a law includes any provision of any constitution, statute, statutory instrument, order, by-law, directive, regulation or decision of any governmental entity and any judicial or administrative interpretation of any of the foregoing, in each case, as amended, revised, modified or replaced from time to time;
(j)
any Irish legal or accounting term for any action, remedy, method of judicial proceeding, insolvency proceeding, event of incapacity, legal or accounting document, legal or accounting status, court, governmental or administrative authority or agency, accounting body, official or any legal or accounting concept practice or principle or thing shall in respect of any jurisdiction other than Ireland be deemed to include what most approximates in that jurisdiction to the Irish legal or accounting term concerned;
(k)
‘writing’ shall include a reference to any electronic mode of representing or reproducing words in visible form; and
(l)
‘business day’ shall be construed as a reference to a day (other than a Saturday or Sunday) on which the banks are generally open for business in Ireland.
2.3
If any ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favouring or disfavouring any Party by virtue of the authorship of any of the provisions of the Agreement.
2.4
Where any obligation in the Agreement is expressed to be undertaken or assumed by any Party, that obligation is to be construed as requiring the Party concerned to exercise all rights and powers of control over the affairs of any other person which it is able to exercise (whether directly or indirectly) in order to secure performance of that obligation by each such person as if that person were bound by that obligation.
2.5
Headings and captions are to be ignored in the construction of the Agreement.
3) User Subscriptions
3.1
Subject to the restrictions set out in this Clause 3 and the other terms and conditions of the Agreement, the Provider grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business purposes.
3.2
The Customer (and shall procure that its Authorised Users and each of them) shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a)
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b)
facilitates illegal activity;
(c)
depicts sexually explicit images;
(d)
promotes unlawful violence;
(e)
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f)
in a manner that is otherwise illegal or causes damage or injury to any person or property.
The Customer acknowledges that it is solely responsible for ensuring that its use (and the use of its Authorised Users) of the Services does not infringe this Clause 3.2 and the Provider shall not be obliged to concern itself with the Customer’s use of the Service; however, the Provider reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access if the Provider becomes aware of any use of any material that breaches the provisions of this Clause.
3.3
The Customer undertakes that:
(a)
it shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i)
and except to the extent expressly permitted under the Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
(ii)
attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b)
it shall not tamper with, bypass or alter the security features of the Software or to circumvent any technical licensing protections for any reason, including but not limited to making Services and/or Documentation available for use by more User Subscriptions than permitted under the Agreement, or to discover the underlying source code;
(c)
it shall not access all or any part of the Services and/or Documentation in order to build a product or service which competes with the Services and/or the Documentation;
(d)
the maximum number of Authorised Users that it authorises to access and use the Services and/or Documentation shall not exceed the number of User Subscriptions it has purchased from the Provider from time to time;
(e)
it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
(f)
each Authorised User shall keep a secure password for his use of the Services and/or Documentation, that appropriate password policies (including frequency of change) will be applied and that each Authorised User shall keep his password confidential;
(g)
it shall permit the Provider to audit the Services in order to establish the number of Authorised Users. Such audit may be conducted no more than once per year, at the Provider’s expense, and this right shall be exercised with reasonable prior notice to the Customer;
(h)
if any of the audits referred to in Clause 3.3(g) reveal that any password has been provided to any individual that is not an Authorised User, then without prejudice to any rights which the Provider may have, the Customer shall immediately disable such passwords;
(i)
if any of the audits referred to in Clause 3.3(g)reveal that the Customer has underpaid Subscription Fees to the Provider, the Customer shall pay to the Provider an amount equal to such underpayment as calculated in accordance with the prices stipulated by the Provider within ten (10) business days of the date of the relevant audit;
(j)
it shall not use the Services and/or Documentation to provide services to third parties;
(k)
iit shall not license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; and
(l)
it shall not attempt to obtain, or assist third parties in obtaining access to the Services and/or Documentation, other than as provided under this Clause 3.3.
3.4
The Customer shall use its best efforts to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Provider.
3.5
The rights provided under this Clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
3.6
The Customer may, from time to time during any Subscription Term by notice in writing to the Provider, request additional User Subscriptions in excess of the number set out in the Order Form. If the Provider approves that request (such approval not to be unreasonably withheld or delayed):
(a)
the Provider shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Agreement; and
(b)
the Customer shall, within 30 business days of the date of the Provider’s invoice, pay to the Provider the relevant fees for such additional User Subscriptions as set out in the Order Form and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
3.7
At any time following the occurrence of a Control Event, the Provider may amend the number of User Subscriptions to such number as the Provider may, in its absolute discretion, sees fit.
4) Services
4.1
The Provider shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.
4.2
The Provider shall be entitled to make changes to the Services and such changes shall be notified to the Customer.
4.3
The Provider shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a)
planned maintenance carried out during the weekly maintenance window; and:
(a)
unscheduled maintenance performed outside Normal Business Hours, provided that the Provider has used reasonable endeavours to give the Customer at least six hours’ notice in advance.
4.4
The Provider will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Provider’s standard customer support services during Normal Business Hours in accordance with the Provider’s Support Services Policy in effect at the time that the Services are provided. The Provider may amend the Support Services Policy in its sole and absolute discretion from time to time. The Customer may purchase enhanced support services separately at the Provider’s then current rates.
5) Charges and payment
5.1
The Customer shall pay the Subscription Fees to the Provider for the User Subscriptions in accordance with this Clause 5 and the Order Form.
5.2
If the Customer is a Sales Enabled Customer, the Provider offers three payment methods to pay the Subscription Fees to the Provider and the Customer agrees to adhere to the applicable payment provisions set out in this Clause 5.2(a) in respect of the relevant payment method:
(a)
Credit card payments: The Customer shall on the Effective Date provide to the Provider its valid, up-to-date and complete credit card details and the Customer hereby authorises the Provider to bill such credit card:
(i)
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii)
subject to Clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; or
(b)
Purchase orders: The Customer shall on the Effective Date provide its valid, up-to-date and complete approved purchase order information to the Provider and the Provider shall invoice the Customer:
(i)
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii)
subject to Clause 14.1, at least 30 business days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 business days after the date of such invoice; or
(c)
Invoices: The Customer shall on the Effective Date provide its valid, up-to-date and complete billing details and any other relevant information required by the Provider and the Provider shall invoice the Customer:
(i)
on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii)
subject to Clause 14.1 at least 30 business days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period; and the Customer shall pay each invoice within 30 business days after the date of such invoice.
5.3
If the Provider has not received payment within 30 business days after the due date, and without prejudice to any other rights and remedies of the Provider:
(a)
the Provider may, without liability to the Customer, disable the Customer’s and any of its Authorised Users’ passwords, accounts and access to all or part of the Services and the Provider shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b)
interest shall accrue on a daily basis on such due amounts at a rate equal to EURIBOR (as at 1 January and 1 July in each year) plus 8 percentage points, commencing on the due date and continuing until fully paid, whether before or after judgment.
5.4
All amounts and fees stated or referred to in the Agreement:
(a)
shall be payable in either US dollars or Euro as specified in the quote provided to the Customer;
(b)
are non-cancellable and non-refundable; and
(c)
are exclusive of value added tax, which (if applicable) shall be added to the Provider’s invoice(s) at the appropriate rate.
5.5
If, at any time whilst using the Services, the Customer exceeds the amount of disk storage space specified in the Documentation, the Provider shall charge the Customer, and the Customer shall pay, the Provider’s then current excess data storage fees. The Provider’s excess data storage fees current as at the Effective Date are set out in the Order Form.
5.6
At the start of each Renewal Period, the Provider shall be entitled to increase any of the Relevant Charges, provided that:
(a)
it has given no less than 90 business days’ prior notice to the Customer, and
(b)
the amount of the increase to a given Relevant Charge shall not exceed an amount equal to seven percent of the amount of the Relevant Charge immediately before the increase.
6) Customer Data
6.1
The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer grants to the Provider sufficient rights to use the Customer Data in order to provide the Services to the Customer.
6.2
The Customer is solely responsible and assumes all risks for the Customer Data used in connection with the Services, including without limitation for any loss, damage, destruction, corruption, loss of access and/or use, alteration, breach or disclosure of Customer Data. The Customer acknowledges and agrees that it is solely responsible for and shall preserve the integrity of any and all Customer Data, including making appropriate back-ups and archiving as required by the Customer.
6.3
The Provider shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.teamwork.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Provider in its sole discretion.
6.4
The terms “Process” (and its derivatives), “Data Controller”, “Data Processor” and “Personal Data” shall have the meanings given to those terms in Data Protection Law.
6.5
Each Party shall comply with any and all Data Protection Law that applies to it in relation to any Personal Data processed in connection with the Agreement (“Protected Data”).
6.6
Without prejudice to the generality of the above clause, if and to the extent the Provider processes Protected Data disclosed to the Provider by Customer in connection with the Agreement, such processing shall be governed by the Data Processing Agreement. By its use of the Services, the Customer accepts the terms of the Data Processing Agreement.
6.7
If the Customer is a Covered Entity and the Provider is a Business Associate (each such term having the meaning given to it in the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. §1320(d) (“HIPAA”)), the provisions of the Business Associate Agreement shall apply. The parties acknowledge and agree that these obligations only apply insofar as they are required in respect of PHI.
7) Third Party Providers
7.1
The Customer acknowledges that the Services may enable or assist it to access the content of, correspond with, and purchase products and services from, third party service providers and that it does so solely at its own risk. THE PROVIDER MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO SUCH THIRD PARTY SERVICE PROVIDERS AND THE PRODUCTS AND/OR SERVICES PROVIDED BY SUCH THIRD PARTY SERVICE PROVIDERS AND SHALL HAVE NO LIABILITY FOR ANY LOSSES OR OBLIGATIONS WHATSOEVER IN RELATION TO THE CONTENT, OR USE OF, OR ACCESS TO, OR CORRESPONDENCE, OR THE SECURITY OF ANY LINK WITH, ANY SUCH THIRD PARTY SERVICE PROVIDER, OR ANY TRANSACTIONS COMPLETED, AND ANY CONTRACT ENTERED INTO BY THE CUSTOMER, WITH ANY SUCH THIRD PARTY. Any contract entered into and any transaction completed with any third party service provider is between the Customer and the relevant third party, and not the Provider. The Provider recommends that the Customer refers to the third party service Provider’s terms and conditions and privacy policy prior to using the relevant third party service provider. The Provider does not endorse or approve any third party service provider nor the content of any third party service Provider’s product and/or service made available via the Services.
8) Provider Obligations
8.1
The provider undertakes that the services will be performed substantially in accordance with the documentation and with reasonable skill and care.
8.2
THE UNDERTAKING AT CLAUSE 8.1 SHALL NOT APPLY TO THE EXTENT OF ANY NON-CONFORMANCE WHICH IS CAUSED BY USE OF THE SERVICES CONTRARY TO THE PROVIDER’S INSTRUCTIONS, OR FAILURE BY THE CUSTOMER TO MAINTAIN THE NECESSARY ENVIRONMENTAL CONDITIONS FOR USE OF THE SERVICES, OR MODIFICATION OR ALTERATION OF THE SERVICES BY ANY PARTY OTHER THAN THE PROVIDER OR THE PROVIDER’S DULY AUTHORISED CONTRACTORS OR AGENTS. IF THE SERVICES DO NOT CONFORM TO THE FOREGOING UNDERTAKING, THE PROVIDER WILL, AT ITS EXPENSE, USE ALL REASONABLE COMMERCIAL ENDEAVOURS TO CORRECT ANY SUCH NON-CONFORMANCE, OR PROVIDE THE CUSTOMER WITH AN ALTERNATIVE MEANS OF ACCOMPLISHING THE DESIRED PERFORMANCE. IN ANY EVENT THE PROVIDER DOES NOT REPRESENT OR WARRANT THAT ANY SUCH CORRECTION OR SUBSTITUTION WILL BE PROVIDED OR PROVIDED WITHIN A SPECIFIED PERIOD. SUCH CORRECTION OR SUBSTITUTION CONSTITUTES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE UNDERTAKING SET OUT IN CLAUSE 8.1. NOTWITHSTANDING THE FOREGOING, THE PROVIDER:
(a)
DOES NOT WARRANT THAT THE CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR THAT THE SERVICES, DOCUMENTATION AND/OR THE INFORMATION OBTAINED BY THE CUSTOMER THROUGH THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS; AND
(b)
IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR ANY OTHER LOSS OR DAMAGE RESULTING FROM THE TRANSFER OF DATA OVER COMMUNICATIONS NETWORKS AND FACILITIES, INCLUDING THE INTERNET, AND THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND DOCUMENTATION MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
8.3
The Agreement shall not prevent the Provider from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
9) Customer Obligations
9.1
THE CUSTOMER UNDERTAKES THAT IT SHALL:
(a)
PROVIDE THE PROVIDER WITH:
(i)
ALL NECESSARY CO-OPERATION AND ASSISTANCE IN RELATION TO THE AGREEMENT; AND
(ii)
ALL NECESSARY ACCESS TO SUCH INFORMATION AS MAY BE REQUIRED BY THE PROVIDER, IN ORDER TO PROVIDE THE SERVICES, INCLUDING BUT NOT LIMITED TO CUSTOMER DATA, SECURITY ACCESS INFORMATION AND CONFIGURATION SERVICES;
(b)
COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS WITH RESPECT TO ITS ACTIVITIES UNDER THE AGREEMENT;
(c)
CARRY OUT ALL OTHER CUSTOMER RESPONSIBILITIES SET OUT IN THE AGREEMENT IN A TIMELY AND EFFICIENT MANNER. IN THE EVENT OF ANY DELAYS IN THE CUSTOMER’S PROVISION OF SUCH ASSISTANCE AS AGREED BY THE PARTIES, THE PROVIDER MAY ADJUST ANY AGREED TIMETABLE OR DELIVERY SCHEDULE AS REASONABLY NECESSARY;
(d)
ENSURE THAT THE AUTHORISED USERS USE THE SERVICES AND THE DOCUMENTATION IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT AND SHALL BE RESPONSIBLE FOR ANY AUTHORISED USER’S BREACH OF THE AGREEMENT;
(e)
OBTAIN AND SHALL MAINTAIN ALL NECESSARY LICENCES, CONSENTS, AND PERMISSIONS NECESSARY FOR THE PROVIDER, ITS CONTRACTORS AND AGENTS TO PERFORM THEIR OBLIGATIONS UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION THE SERVICES;
(f)
ENSURE THAT ITS NETWORK AND SYSTEMS COMPLY WITH THE RELEVANT SPECIFICATIONS PROVIDED BY THE PROVIDER FROM TIME TO TIME;
(g)
KEEP A FULL BACK-UP COPY OF ALL OF ITS DATA, INCLUDING BUT NOT LIMITED TO CUSTOMER DATA;
(h)
PROVIDE THE PROVIDER AND ALL OTHER PERSONS DULY AUTHORISED BY THE PROVIDER WITH FULL, SAFE AND UNINTERRUPTED ACCESS TO ITS NETWORK, SYSTEM, EQUIPMENT AND ALL APPLICATIONS USED BY THE CUSTOMER TO ACCESS AND USE THE SERVICES AS MAY REASONABLY BE REQUIRED BY THE PROVIDER TO PROVIDE THE SERVICES; AND
(i)
BE SOLELY RESPONSIBLE FOR ENSURING THAT APPROPRIATE ENVIRONMENTAL CONDITIONS ARE MAINTAINED FOR ITS RECEIPT AND USE OF THE SERVICES, PROCURING AND MAINTAINING ITS NETWORK CONNECTIONS AND TELECOMMUNICATIONS LINKS FROM ITS SYSTEMS TO THE PROVIDER’S DATA CENTRES, AND ALL PROBLEMS, CONDITIONS, DELAYS, DELIVERY FAILURES AND ALL OTHER LOSS OR DAMAGE ARISING FROM OR RELATING TO THE CUSTOMER’S NETWORK CONNECTIONS OR TELECOMMUNICATIONS LINKS OR CAUSED BY THE INTERNET.
9.2
THE CUSTOMER SHALL INDEMNIFY THE PROVIDER AGAINST ANY AND ALL LOSSES INCURRED BY OR AWARDED AGAINST THE PROVIDER AS A RESULT OF THE CUSTOMER’S AND ANY OF ITS AUTHORISED USERS’ BREACH OF THE AGREEMENT.
10) Proprietary Rights
10.1
The Customer acknowledges and agrees that the Provider and/or its licensors own all the Intellectual Property Rights in the Services, Software and the Documentation. The Agreement does not grant the Customer any rights to, or in, the Intellectual Property Rights, or any other rights or licences in respect of the Services or the Documentation. The Customer shall notify the Provider if it becomes aware of any unauthorised use of the whole or any part of the Services and the Documentation by any person or entity.
10.2
The Intellectual Property Rights in the Services, Software and the Documentation including any adaptions, modifications and updates to same (but excluding the API) are and shall remain vested in the Provider, whether created by the Customer or the Provider. The Customer assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights to the Provider.
10.3
THE PROVIDER MAKES NO REPRESENTATION OR WARRANTY AS TO THE EXISTENCE, VALIDITY OR ENFORCEABILITY OF THE INTELLECTUAL PROPERTY RIGHTS IN ANY API, WHICH MAY BE USED IN CONNECTION WITH THE SERVICES NOR AS TO WHETHER THE SAME INFRINGE ON ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
10.4
The Customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and thing that the Provider may consider necessary or desirable to perfect the right, title and interest of the Provider in and to the Intellectual Property Rights in the Services, Software and/or the Documentation provided by the Provider and including any adaptions, modifications and updates to same.
11) Confidentiality
11.1
Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under the Agreement. A Party’s Confidential Information shall not be deemed to include information that:
(a)
is or becomes publicly known other than through any act or omission of the receiving Party;
(b)
was in the other Party’s lawful possession before the disclosure
(c)
is lawfully disclosed to the receiving Party by a third party without restriction on disclosure;
(d)
is independently developed by the receiving Party, which independent development can be shown by written evidence; or
(e)
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2
Each Party shall hold the other’s Confidential Information in confidence and shall maintain the confidentiality of such Confidential Information using at least the same degree of care as it employs to safeguard its own Confidential Information, but no less than reasonable care. Each Party shall unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement
11.3
Each Party shall ensure that its employees or agents are made aware before the disclosure of any part of the Confidential Information that the same is confidential and that they owe a duty of confidence to the other Party.
11.4
Neither Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5
Notwithstanding Clause 11.4, each Party shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it divulges all or any part of the Confidential Information and shall give the other Party all reasonable assistance in connection with any proceedings which the other Party may institute against such person for breach of confidence.
11.6
The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Provider’s Confidential Information.
11.7
The Provider acknowledges that the Customer Data is the Confidential Information of the Customer.
12) Indemnity
12.1
THE CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE PROVIDER AGAINST ALL LOSSES (INCLUDING WITHOUT LIMITATION COURT COSTS AND LEGAL FEES) ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S USE, AND THAT OF THE AUTHORISED USERS, OF THE SERVICES AND/OR DOCUMENTATION, PROVIDED THAT:
(a)
THE CUSTOMER IS GIVEN PROMPT NOTICE OF ANY SUCH CLAIM THAT MAY GIVE RISE TO A LOSS;
(b)
THE PROVIDER PROVIDES REASONABLE CO-OPERATION TO THE CUSTOMER IN THE DEFENCE AND SETTLEMENT OF SUCH CLAIM THAT MAY GIVE RISE TO A LOSS, AT THE CUSTOMER’S EXPENSE; AND
(c)
THE CUSTOMER IS GIVEN SOLE AUTHORITY TO DEFEND OR SETTLE THE CLAIM.
13) Limitation Of Liability
13.1
THIS CLAUSE 13 SETS OUT THE ENTIRE FINANCIAL LIABILITY OF THE PROVIDER (INCLUDING ANY LIABILITY FOR THE ACTS OR OMISSIONS OF ITS EMPLOYEES, AGENTS AND SUB-CONTRACTORS) TO THE CUSTOMER IN RESPECT OF:
(a)
ANY BREACH OF THE AGREEMENT;
(b)
ANY USE MADE BY THE CUSTOMER OF THE SERVICES, SOFTWARE AND/OR DOCUMENTATION OR ANY PART OF THEM; AND
(c)
IN RESPECT OF ANY REPRESENTATION, STATEMENT OR TORTIOUS ACT OR OMISSION (INCLUDING NEGLIGENCE) ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT.
13.2
EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED IN THE AGREEMENT:
(a)
THE CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES, SOFTWARE AND/OR THE DOCUMENTATION BY THE CUSTOMER, AND FOR CONCLUSIONS DRAWN FROM SUCH USE. THE PROVIDER SHALL HAVE NO LIABILITY FOR ANY DAMAGE CAUSED BY ERRORS OR OMISSIONS IN ANY INFORMATION, INSTRUCTIONS OR SCRIPTS PROVIDED TO THE PROVIDER BY THE CUSTOMER IN CONNECTION WITH THE SERVICES, OR ANY ACTIONS TAKEN BY THE PROVIDER AT THE CUSTOMER’S DIRECTION; AND
(b)
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES, SOFTWARE AND/OR THE DOCUMENTATION ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” BASIS AND THE PROVIDER MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES, SOFTWARE AND/OR THE DOCUMENTATION, WHETHER IMPOSED BY STATUTE OR BY OPERATION OF LAW OR OTHERWISE, AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDED FROM THE AGREEMENT.
13.3
NOTHING IN THE AGREEMENT EXCLUDES THE LIABILITY OF THE PROVIDER:
(a)
FOR DEATH OR PERSONAL INJURY CAUSED BY THE PROVIDER’S NEGLIGENCE; OR
(b)
FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
13.4
SUBJECT TO CLAUSES 13.2 AND 13.3, THE PROVIDER’S TOTAL AGGREGATE LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE AGREEMENT SHALL BE LIMITED TO THE TOTAL SUBSCRIPTION FEES PAID BY THE CUSTOMER FOR THE USER SUBSCRIPTIONS TO THE PROVIDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE PROVIDED ALWAYS THAT THE PROVIDER SHALL NOT IN ANY CIRCUMSTANCES BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, OR LOSS OF ANTICIPATED SAVINGS, OR LOSS OF USE OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES HOWEVER ARISING UNDER THE AGREEMENT.
13.5
TO THE FULLEST EXTENT PERMITTED BY THE LAW, THE PROVIDER SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY COSTS, EXPENSES AND/OR DAMAGES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER ECONOMIC OR OTHER) ARISING FROM THE AUTHORISED USERS’ ACCESS AND/OR USE OF THE SERVICES AND/OR DOCUMENTATION.
13.6
THE CUSTOMER AGREES THAT, IN ENTERING INTO THE AGREEMENT, EITHER IT DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OF ANY PERSON OTHER THAN THOSE EXPRESSLY SET OUT IN THE AGREEMENT OR (IF IT DID RELY ON ANY REPRESENTATIONS, WHETHER WRITTEN OR ORAL, NOT EXPRESSLY SET OUT IN THE AGREEMENT) THAT IT SHALL HAVE NO REMEDY IN RESPECT OF SUCH REPRESENTATIONS AND (IN EITHER CASE) THE PROVIDER SHALL HAVE NO LIABILITY OTHERWISE THAN PURSUANT TO THE EXPRESS PROVISIONS OF THE AGREEMENT.
13.7
TEACH PROVISION OF THIS CLAUSE 13 EXCLUDING OR LIMITING LIABILITY SHALL BE CONSTRUED SEPARATELY, APPLYING AND SURVIVING EVEN IF FOR ANY REASON ONE OR OTHER OF THESE PROVISIONS IS HELD INAPPLICABLE OR UNENFORCEABLE AND SHALL REMAIN IN FORCE NOTWITHSTANDING THE TERMINATION OF THE AGREEMENT, HOWSOEVER ARISING.
14) Term and Termination
14.1
The Agreement shall, unless otherwise terminated as provided in this Clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods of 12 months in relation to a Service and/or Services (each a “Renewal Period”), unless:
(a)
either Party notifies the other Party of termination, in writing, at least 60 business days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b)
otherwise terminated in accordance with the provisions of the Agreement.
14.2
Without prejudice to any other rights or remedies to which the parties may be entitled, either Party (each a “Terminating Party”) may terminate the Agreement immediately upon written notice to the other Party and without liability to the other (a “Defaulting Party”) if:
(a)
the Defaulting Party commits a breach of its obligations under the Agreement which breach is (in the opinion of the Terminating Party) material and, where such breach is (in the opinion of the Terminating Party) capable of remedy, fails to remedy that breach within 30 business days of having been given notice by the Terminating Party to remedy that breach; or
(b)
the Defaulting Party is, or is deemed for the purposes of the Companies Act 2014 and any other relevant law in Ireland to be, unable to pay its debts as they fall due or to be insolvent, or admits inability to pay its debts as they fall due; or the Defaulting Party suspends making payments on all or any class of its debts or announces an intention to do so, or a moratorium is declared in respect of any of its indebtedness; or
(c)
any step (including the making of any proposal, the convening of any meeting, the passing of any resolution, the presenting of any petition or the making of any order) is taken with a view to a composition, assignment or arrangement with any creditors of, or the winding up, liquidation or dissolution of, the Defaulting Party; or any liquidator, provisional liquidator, receiver or examiner is appointed to or in respect of the Defaulting Party or any of its assets.
14.3
The Provider shall have the right, without prejudice to any other rights or remedies to which it may be entitled, to terminate the Agreement immediately upon written notice to the Customer where the Customer disputes the ownership or validity of the Provider’s Intellectual Property Rights in and to the Services, Software and/or Documentation.
14.4
On termination of the Agreement for any reason:
(a)
all licences granted under the Agreement shall terminate with effect from the Termination Date;
(b)
each Party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them), which includes but is not limited to Confidential Information, belonging to the other Party;
(c)
the Customer’s right to receive the Services shall cease automatically and no refunds (whether pro rata or otherwise) of any amount will be payable to the Customer and the Customer agrees that it and any Authorised Users shall make no further use of the Services and/or Documentation;
(d)
the Customer shall remove and backup all Customer Data within 10 business days of the Termination Date;
(e)
the Provider shall be entitled to destroy or otherwise dispose of any of the Customer Data in its possession after the tenth (10) business day following the Termination Date; and
(f)
all amounts due from the Customer under the Agreement shall be payable immediately by the Customer.
14.5
The provisions of this Clause 14 and Clauses 1 (the agreement), 2 (interpretation), 9.2 (customer obligations), 11 (confidentiality), 12 (indemnity), 13 (limitation of liability), 17 (governing law and jurisdiction), 19 (communications) and, to the extent applicable 18 (general) shall survive the termination the Agreement however it arises, and shall continue to bind the parties or the relevant Party (as applicable) without limit in time.
14.5
Termination of the Agreement shall not affect any rights of the parties accrued up to the Termination Date.
15) Suspension of Services
15.1
Without prejudice to any other right that the Provider may have it may suspend the Services or any part thereof upon written notice to the Customer where:
(a)
the Provider becomes aware of a claim that the Services, Software and/or Documentation infringes on any third party rights or occurs in violation of applicable laws or regulations or the restrictions on use set out in Clause 3; or
(b)
the Provider detects that any method or device is being used to circumvent the normal security measures implemented in connection with access and use of the Services; or
(c)
if there is a suspected, threatened or actual attack on either Party’s applications and/or platforms used to provide the Services; or
(d)
if any event occurs for which the Provider reasonably believes that suspension of the Services is necessary to protect the Services or to prevent third party access to the Services.
16) Force Majeure
16.1
THE PROVIDER SHALL HAVE NO LIABILITY TO THE CUSTOMER UNDER THE AGREEMENT IF IT IS PREVENTED FROM OR DELAYED IN PERFORMING ITS OBLIGATIONS UNDER THE AGREEMENT, OR FROM CARRYING ON ITS BUSINESS, BY ACTS, EVENTS, OMISSIONS OR ACCIDENTS BEYOND ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, STRIKES, LOCK-OUTS OR OTHER INDUSTRIAL DISPUTES (WHETHER INVOLVING THE WORKFORCE OF THE PROVIDER OR ANY OTHER PARTY), FAILURE OF A UTILITY SERVICE OR TRANSPORT OR TELECOMMUNICATIONS NETWORK, ACT OF GOD, WAR, RIOT, CIVIL COMMOTION, MALICIOUS DAMAGE, COMPLIANCE WITH ANY LAW OR GOVERNMENTAL ORDER, RULE, REGULATION OR DIRECTION, ACCIDENT, BREAKDOWN OF PLANT OR MACHINERY, FIRE, FLOOD, STORM OR DEFAULT OF PROVIDERS OR SUB-CONTRACTORS, PROVIDED THAT THE CUSTOMER IS NOTIFIED OF SUCH AN EVENT AND ITS EXPECTED DURATION.
17) Governing Law and Jurisdiction
17.1
The Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with Irish law.
17.2
The parties irrevocably agree that the Irish courts shall have exclusive jurisdiction to hear, determine and settle any dispute arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
18) Publicity
18.1
The Customer agrees that from the Effective Date, and for so long as the Customer remains a Customer of the Provider, the Provider is entitled to publicly announce (including using the Customer as a reference Customer) the fact that the Parties have entered into the Agreement for the provision of the Services in order to assist the Provider with its promotion, publicity, marketing or advertising activities. Any other publicity, announcements and/or press releases about or in relation to the Agreement or any of the provisions set out in the Agreement will require the prior written consent of the Customer, which shall not be unreasonably withheld or delayed.
18.2
Subject to Clause 18.1, the Customer consents to the Provider using its Intellectual Property Rights solely for the purpose of fulfilling its obligations under Clause 18.1.
19) Communications
19.1
Notices and other communications under or in connection with the Agreement shall be given in writing by hand, by airmail, registered courier or by e-mail, save that service of any notice of any claim, dispute, termination, breach or legal proceedings in connection with the Agreement shall not be made by e-mail. Any such notice, if so given, shall be deemed to have been served:
(a)
if sent by hand, when delivered;
(b)
if sent by airmail or registered courier, three (3) business days after despatch; and
(c)
if sent by e-mail, six (6) hours after sending provided the sender has not received notice of failed or delayed delivery.
19.2
The address, telephone number and facsimile number of each Party for the purpose of the giving of notices under the Agreement shall be that set forth in the Order Form in relation to each Party (or such other address or number or address (if any) as has, for the time being, most recently been stipulated by the addressee concerned in a notice to the other Party given in accordance with this Clause).
20) General
20.1
If the whole or any part of a provision of the Agreement is or becomes illegal, invalid or unenforceable under the law of any jurisdiction, that shall not affect the legality, validity or enforceability under the law of that jurisdiction of the remainder of the provision in question or any other provision of the Agreement and the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of the Agreement.
20.2
The Customer shall not, without the written consent of the Provider: (i) assign, transfer (whether voluntarily or involuntarily, by operation of law or otherwise) or create or permit to exist any right, title or interest (including, without limitation, any security interest and any beneficial interest under any trust) in, to or under, any of its rights under the Agreement; or (ii) purport to transfer, sub-contract or delegate any of its obligations under the Agreement. The Provider may transfer, subcontract or delegate any and all of its obligations under the Agreement.
20.3
Each Party shall (at its own cost) do and execute, or arrange for the doing and executing of, each necessary act, document and thing as may be reasonably requested of it by any other Party to implement the Agreement.
20.4
Nothing in the Agreement shall create, or be deemed to create, a partnership, joint venture, or the relationship of principal and agent, between the parties, and neither Party shall have any right or authority to act on behalf of the other or to bind the other in any way.
20.5
The Agreement is made only in the English language. If there is any conflict in meaning between the English language version of the Agreement and any version or translation of the Agreement in any other language, the English language version shall prevail. Each document and communication referred to in the Agreement or to be delivered under it shall be in the English language or, if not, accompanied by an English translation of it, certified as accurate by an officer of the Party issuing that document or communication; and in the case of conflict between the English language version and any other version, the English language version shall prevail.
20.6
The express terms of the Agreement constitute the sole and entire agreement between the parties in relation to the provision of the Services and supersede all prior written and oral arrangements, understandings, representations, warranties and agreements between them in that regard (if any). Each Party acknowledges that it is not relying, and will not seek to rely, on any arrangement, understanding, representation, warranty, agreement, term or condition which is not expressly set out in the Agreement.
20.7
Each of the rights of each Party under the Agreement may be exercised as often as is necessary, is cumulative and not exclusive of any other rights which that Party may have under the Agreement, law or otherwise; and may be waived only in writing and specifically. Delay by a Party in exercising, or the non-exercise by a Party of, any such right shall not constitute a waiver of that right.