Note: Terms and conditions for contracts signed prior to March 1st 2024 can be found here:
COMMUNITY BRANDS UK LIMITED
TERMS AND CONDITIONS OF BUSINESS
The Licensee’s attention is particularly drawn to the provisions of Clause 8 (Disclaimer) and Clause 10 (Limitation of Liability)
These terms and conditions of business (“Terms and Conditions”) apply to the purchase of certain Licensed Software, SaaS, Professional Services and/or Support Services (each as defined below) by the legal entity identified as the Licensee (“the Licensee”) under the applicable Contract (defined below) from the legal entity identified as the Licensor (“the Licensor”) under the applicable Contract.
The agreement (the “Agreement”) between the Licensor and the Licensee regarding the purchase and sale of Products described on the Contract executed by the Licensee (the “Contract”) consists of (i) these Terms and Conditions; (ii) the Contract, and (iii) any attachments to the Contract. Unless otherwise specifically agreed upon in writing by the Licensor and the Licensee, the Terms and Conditions apply to any Licensed Software, SaaS and/or Support Services provided to the Licensee by any affiliate or subsidiary of the Licensor. In the event of a conflict, the following order of precedence applies: (a) the Contract; (b) these Terms and Conditions; and (c) an attachment to the Contract.
These Terms and Conditions apply to any transaction between the Licensor and the Licensee to the exclusion of any terms which the Licensee attempts to incorporate into any agreement between them.
1. DEFINITIONS.
1.1 “Authorized Users” means those employees, consultants, or members of the Licensee, or certain other third parties to the extent expressly identified in the Contract, who will be authorised by the Licensee to have access to and/or use the Products on behalf of the Licensee as set forth in the Contract.
1.2 “Confidential Information” is defined in Clause 6 below.
1.3 “Deliverable” means deliverables to be created, developed, and delivered by the Licensor pursuant to the Contract.
1.4 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, service marks, design rights, trade secret, inventions, database protection or other intellectual property rights and laws, and all similar or equivalent rights or forms of protection in any part of the world.
1.5 “Licensed Software” means software that the Licensor provides to the Licensee for the Licensee’s internal business use. Licensed Software does not include SaaS, though Licensed Software may interface with SaaS.
1.6 “Licensee Data” means information, in any form, format, or media, accessed or otherwise processed by the Licensor in connection with performance of the Products, including, without limitation all Personal Data and Confidential Information, whether such information is that of the Licensee or any Authorized User.
1.7 “Contract” means the form of “order” or “quote” describing a specific set of Products and/or Professional Services to be purchased by the Licensee and executed by authorized representatives of same. References to the Contract include any attachments or exhibits to the Contract, except where these Terms and Conditions specifically address attachments separately.
1.8 “Personal Data” means any information which is provided by the Licensee to the Licensor to process on behalf of the Licensee relating to a data subject who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that data subject and which is governed by all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (the “UK GDPR”); the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended; and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the United Kingdom; and any applicable guidance or codes of practice issued by the Information Commissioner’s Office or other applicable regulatory authorities from time to time
1.9 “Products” means Licensed Software, Professional Services, SaaS, and Support Services.
1.10 “Professional Services” means implementation, training, configuration, migration, consulting and/or professional services provided by the Licensor to the Licensee pursuant to the Contract or any Statement of Work.
1.11 “SaaS” means software-as-a-service where Licensor hosts software (directly or indirectly) for and provides Licensee with access to use such software. For the avoidance of doubt, SaaS does not include Licensed Software.
1.12 “Services” means, collectively, Professional Services and Support Services.
1.13 “Specifications” means such technical and functional specifications for Licensed Software and/or SaaS as are included or referenced in the Contract.
1.14 “Support Services” means maintenance and support for the Licensed Software and/or SaaS.
2. PAYMENT AND FEES.
2.1 Description of Products. The Products being purchased by the Licensee from the Licensor are described in the Contract.
2.2 Fees. The Licensee will pay to the Licensor the fees and charges (“Fees”) set forth in, and in accordance with, the Contract. Fees are non-cancelable and non-refundable.
2.3 Fees Variation: The Licensor reserves the right to vary the Fees from time to time as it may deem appropriate. The Licensee shall receive 30 days’ prior written notice of any such variation. Such variations shall take effect upon expiry of such notice. In addition, to the extent any Product being purchased by the Licensee includes bundled usage, such usage is limited to fair use. If Licensee exceeds the fair use of the Product, in Licensor’s sole discretion, Licensor may adjust the Fees payable for such Product upon 30 days’ prior written notice of any such adjustment.
2.4 Overdue Payment. Any payment not received from the Licensee by the payment due date within will accrue interest at the rate set by Regulations made under The Late Payment of Commercial Debts (Interest) Act 1998, from the date such payment was due until the date paid whether before or after judgement. In addition, without limiting its other rights or liabilities, if any undisputed amount is owing by the Licensee then the Licensor may, upon prior written notice: (a) summarily terminate the Contract; or (b) summarily suspend the applicable Products and/or Services until all undisputed overdue amounts are paid in full. Notwithstanding the foregoing any payment subject to a good faith dispute pursuant to Clause 2.5 will not incur late charges.
2.5 Disputed Payments. The Licensee may dispute part or the entirety of an invoice by: (a) providing written notice to the Licensor of such dispute within ten days of the date of the invoice and (b) providing a reasonably detailed description of the dispute, at least sufficient to allow the Licensor to analyze the dispute, as part of the written notice and (c) only submitting such dispute in good faith and (d) paying all undisputed amounts when due and paying all disputed amounts promptly after resolution of such dispute.
2.6 Value added tax. All Fees are exclusive of any value added tax or any and all similar taxes based on such amounts payable, all of which shall be the sole responsibility of the Licensee whether due now or subsequently imposed by any jurisdiction..
3. INTELLECTUAL PROPERTY.
3.1 Reservation of Rights. The Licensor retains all Intellectual Property Rights in the Licensor’s Confidential Information and on the Products, including without limitation, all corrections, modifications, and other derivative works to the Products developed by the Licensor. All Intellectual Property Rights in any work arising from or created, produced, or developed by the Licensor, whether alone or jointly with others, under or in the course of the Agreement, will immediately upon creation or performance vest absolutely in and will be and remain the property of the Licensor, and the Licensee will not acquire any right, title, or interest in or to it.
3.2 Licensee Rights. The Licensee is and will remain the exclusive owner of all right, title, and interest in and to the Licensee’s Confidential Information, including, without limitation, any Intellectual Property Rights relating thereto. The Licensor will not acquire any rights in the Licensee’s Confidential Information except for those limited rights expressly specified in the Terms and Conditions, including, without limitation, the right to access Authorized User accounts and the Licensee’s Confidential Information to deliver Products, respond to technical problems, and to otherwise perform its obligations under the Agreement. As between the Licensor and the Licensee, the Licensee will own Licensee Data.
3.3 Licensee Input. The Licensee hereby grants to the Licensor a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, license to use or incorporate into the Products any suggestions, enhancements, requests, recommendations, or other feedback provided by the Licensee.
3.4 Marks. Except as otherwise set forth in these Terms and Conditions, nothing contained herein shall grant to either party any right, title, or interest in the other party’s marks.
4. USE RIGHTS.
4.1 The Licensor hereby grants to the Licensee a non-exclusive, non-transferable license to use the Licensed Software and/or access the SaaS for its internal business purposes only and only during the term of the Contract, subject to the restrictions contained in the Agreement.
4.2 The Licensee will not sell, lease, assign, sublicense or otherwise transfer or disclose the Licensed Software and/or SaaS in whole or in part, to any third party.
4.3 The Licensee shall not copy the Licensed Software and/or SaaS in whole or in part, except as reasonably necessary for archival back-up purposes and for the Licensee’s internal modification and use of the Licensed Software and/or SaaS as permitted under these Terms and Conditions.
4.4 The Licensee will make fair use of the Products, as determined by Licensor in its sole discretion.
4.5 All copies of the Licensed Software and/or SaaS must contain all proprietary marks, legends and copyright notices that appear on the original copies delivered to the Licensee by the Licensor in connection with the limited license granted under the Agreement.
4.6 In connection with the limited license granted under the Agreement, the Licensor may from time to time provide updates, upgrades, new releases, replacements, modifications and/or patches or fixes to the Licensed Software and/or SaaS, in its discretion, as it deems necessary or appropriate, on the condition that such changes do not materially decrease the functionality or features of the Licensed Software and/or SaaS, or violate any SLA (defined below). Any such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS will automatically become part of the Licensed Software and/or SaaS and subject to the terms of these Terms and Conditions (unless these Terms and Conditions are superseded by a further agreement accompanying such update, upgrade, release, replacement, modification, patch or fix to the Licensed Software and/or SaaS).
5. PROFESSIONAL SERVICES
5.1 Description. All Professional Services to be performed and Deliverables to be developed by the Licensor will be described in the Contract.
5.2 Licensee Obligations. The Licensee acknowledges and agrees that the performance of Professional Services is heavily dependent upon information and responses to be provided by the Licensee. Accordingly, in addition to any specific responsibilities set out in the Contract, the Licensee shall: (a) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by the Licensor, to allow the Licensor to perform the Professional Services and develop the Deliverables; (b) carry out reviews and respond to requests for approval and information on a timely basis; (c) ensure that the Licensor has available to them personnel familiar with the Licensee’s requirements and with the expertise necessary to permit the Licensor to undertake and complete the Professional Services; and (d) make available to the Licensor all equipment, material, information, data, network access and/or facilities that the Licensor may reasonably require to carry out its obligations under the Contract. The Licensee acknowledges that any delay on its part in the performance of its obligations may have an impact on the Licensor’s performance of its activities under the Contract and accordingly the Licensor shall not be liable for any delay to the extent caused by the Licensee’s failure to fulfill any of its material requirements under the Agreement. Licensee further acknowledges that, in the event of delay in performance on its part that is thirty (30) days or greater in duration, in its sole discretion Licensor may place the SERVICES/PROJECT on hold and BILL CUSTOMER PURSUANT TO TERMS AMOUNTS outstanding as of such date until such time as Licensor becomes current on its obligations. When Licensor determines that Licensee has performed its obligations sufficient for Licensor to resume the PROJECT/SERVICES, Licensor will resume the SERVICES/PROJECT; provided, the SERVICES/PROJECT SHALL BE RESUMED ON A TIMEFRAME BASED UPON OTHER PROJECTS THAT ENTERED THE QUEUE DURING THE HOLD PERIOD.
5.3 Project Manager. The Licensee will designate a “Project Manager,” if applicable under the Contract, as the primary point of contact for the Licensee for any matter relating to the provision of the Professional Services and development of the Deliverables.
5.4 Support Services. If set forth in the Contract, the Licensor will provide the Licensee with Support Services in accordance with an applicable exhibit to the Contract.
6. CONFIDENTIALITY.
6.1 Definition. For purposes of these Terms and Conditions, “Confidential Information” refers to the following items one party to these Terms and Conditions discloses (the “Discloser”) to the other party (the “Recipient”) under these Terms and Conditions: (a) the terms and conditions of these Terms and Conditions and the contents of the Contract; (b) information relating to a party’s business, customers, financial condition, or operations; (c) a party’s information technology systems, documents and intellectual property; (d) any other information, whether in a tangible medium or oral and marked or clearly identified by a party as confidential or proprietary at the time of disclosure; and (e) any other nonpublic, sensitive information, including Personal Data and (f) any documents which are derived from or in connection with such information or which contain or are based in whole or part upon such information.
6.2 Exceptions. Confidential Information does not include information that: (a) is known to the Recipient prior to its first receipt of such information from the Discloser; (b) is or becomes generally known to the public other than as a result of an unauthorized disclosure by Recipient; (c) is independently developed by the Recipient without access to or use of the Confidential Information; or (d) is approved for release by the Discloser in writing and prior to such release.
6.3 Nondisclosure. Recipient will not use Confidential Information for any purpose other than pursuant to these Terms and Conditions. Recipient: (a) will not disclose Confidential Information to any third party, except employees, contractors and service providers of Recipient who reasonably needs access for such purpose and is subject to a nondisclosure agreement with Recipient with terms no less restrictive than those of these Terms and Conditions; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with the Discloser in any effort to seek a protective order (including an injunction) or otherwise to contest such required disclosure at the Discloser’s expense.
6.4 Retention of Rights. These Terms and Conditions do not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
6.5 Return of Confidential Information. Upon termination of these Terms and Conditions, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
7. DATA SECURITY.
7.1 Data Security. The Licensor agrees that it will maintain appropriate technical and organizational measures intended to comply with industry standard practices and all applicable laws and regulations, including without limitation all applicable laws and regulations relating to privacy, security, and with respect to the use, processing, handling, security, storage, and disclosure of Personal Data under these Terms and Conditions. In addition, the Licensor shall provide its Products and/or Professional Services in accordance with generally recognized information security practices, guidelines, or requirements. Upon reasonable written request by the Licensee then the Licensor shall make available to the Licensee its most recent Customer Data Security Statement and/or its Privacy Policies.
7.2 Security Incident. In the event of unauthorized disclosure of Personal Data in the Licensor’s possession resulting from a security incident, the Licensor shall, after the Licensor first becomes aware of such occurrence: (a) promptly notify the Licensee of the incident; and (b) reasonably cooperate with the Licensee to investigate the incident.
8. REPRESENTATIONS & WARRANTIES.
8.1 Right to Contract & Disclose. Each party represents and warrants that (a) it has the legal power to enter into these Terms and Conditions; (b) it has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; and (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to affect adversely its ability or the ability of the other party to perform fully its respective obligations hereunder.
8.2 Compliance with Laws. Each party will comply with all U.K. laws and government rules and regulations, as applicable to its performance under these Terms and Conditions.
8.3 Licensed Software Warranties. The Licensor warrants that the Licensed Software shall perform substantially in accordance with the technical specifications for 60 days following delivery (the “Warranty Period”). If the Licensee believes there has been a breach of warranty it must promptly notify the Licensor in writing within the Warranty Period describing the issue in sufficient detail. In the event of breach of the warranty in this Clause 8.3, the Licensee’s sole remedy shall be, at the Licensor’s absolute discretion: (a) the Licensor shall repair the Licensed Software or (b) the Licensor shall replace the Licensed Software with software of substantially similar functionality or (c) the Licensor may terminate the Contract and refund to the Licensee applicable Fees paid to the Licensor by the Licensee for the Licensed Software not in compliance with this warranty.
8.4 SaaS Warranties. The Licensor warrants that: (a) it has a right to grant a license to use the SaaS in accordance with the terms of these Terms and Conditions; (b) and the SaaS will perform substantially in accordance with the technical specifications during the term of the Contract. If the Licensee believes there has been a breach of warranty it must promptly notify the Licensor in writing within the term of the Contract describing the issue in sufficient detail. In the event of breach of the warranty in this Clause 8.4, the Licensee’s sole remedy shall be, at the Licensor’s absolute discretion: (i) the Licensor shall repair the SaaS; (ii) the Licensor shall replace the SaaS with software of substantially similar functionality; or (iii) the Licensor may terminate the Contract and refund to the Licensee applicable Fees paid to the Licensor by the Licensee for the SaaS not in compliance with this warranty. If the Contract includes a Service Level Agreement (“SLA”), THE TERMS OF THE SLA SET FORTH THE LICENSOR’S ENTIRE OBLIGATION AND LIABILITY FOR BREACH OF THE WARRANTY SET FORTH IN THIS CLAUSE 8.4.
8.5 Services Warranties. The Licensor warrants that it will perform the Services in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. The Licensor may, in its sole discretion, determine the method and means for performing the Services. If during the term of Contract or Statement of Work, the Licensor receives written notice from the Licensee of a defect with the performance of the Services then the Licensor will promptly re-perform the relevant Services for no additional fee.
8.6 Disclaimer of Warranty and Liability. The warranties provided in this Clause do not apply if the failure to meet the applicable warranty for the Licensed Software or SaaS is caused (i) by malfunction of non-Licensor hardware or software, (i i ) by modification of the Licensed Software and/or SaaS not made by Licensor, (i i i ) by operator error, or (iv) by use of the Licensed Software and/or SaaS that is not in accordance with any of the Licensor documentation. EXCEPT FOR THE WARRANTIES EXPRESSLY STATED HEREIN, ALL PRODUCTS ARE PROVIDED “AS-IS,” AND THE LICENSOR HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR MAKES NO REPRESENTATION OR WARRANTY THAT:
(A) THE USE OF ANY SAAS OR LICENSED SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE SAAS OR LICENSED SOFTWARE WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE SAAS OR LICENSED SOFTWARE (OR ANY PRODUCTS, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE LICENSEE THROUGH THE SAAS OR LICENSED SOFTWARE) WILL MEET THE LICENSEE’S REQUIREMENTS OR EXPECTATIONS; (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) SAAS OR LICENSED SOFTWARE (OR ANY SERVER(S) THAT MAKE THE SERVICES AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9. IDEMNIFICATION.
9.1 The Licensee’s Indemnification. The Licensee will defend and indemnify the Licensor and its affiliates, trustees, directors, officers, and employees against any third-party claim, suit, or proceeding arising out of or related to (a) the Licensee’s use of the Products in violation of any law applicable to the Licensee’s use of the Products or in a way that damages a third party; or (b) any Licensee Confidential Information infringing Intellectual Property Rights of any third party.
The Licensee’s further Indemnification. The Licensee will fully indemnify the Licensor against all costs, expenses, liabilities, losses, damages and judgments that the Licensor may incur or be subject to as a result of (a) any content that the Licensee creates and or uses in relation to its use of the Products and (b) the Licensee’s misuse of the Products or any other element of the services provided by the Licensor and (c) the Licensee’s breach of its obligations in these Terms and Conditions
9.2 The Licensor’s Indemnification. The Licensor will defend, at its expense, any action brought against the Licensee to the extent that it is based on a third-party claim that the use of the Products directly infringes any copyright or misappropriates any trade secret, and the Licensor will indemnify the Licensee against any costs, damages and fees finally awarded against the Licensee in such action which are attributable to such claim. The Licensee agrees to notify the Licensor promptly in writing of any claim and to permit the Licensor to defend, compromise or settle the claim and to provide all available information and reasonable assistance regarding such claim.
Should any Products become, or in the Licensor’s opinion be likely to become, the subject of a claim for infringement then the Licensor may: (a) procure for the Licensee, at no cost to the Licensee, the right to continue to use the Products; (b) replace or modify the Products at no cost to the Licensee, to make such Product non-infringing, provided that the replacement or modified Products provides substantially similar function and performance; or (c) if neither (a) or (b) are practical, terminate the right to use such Products.
The Licensor shall have no liability for any claim based upon: (i) the combination, operation or use of any Products with equipment, devices or software not supplied or specified by the Licensor; (ii) the alteration or modification of any Products that was not made by the Licensor; or (iii) the failure by the Licensee to use a supported version of the Products after it has been made available to the Licensee. This Clause 9.2 states the entire liability of the Licensor with respect to infringement of any third-party Intellectual Property Rights by the Products and the Licensor shall have no additional liability with respect to any alleged or proven infringement.
The Licensee shall promptly notify the Licensor in writing upon its discovery of any unauthorized use or infringement of the Products, Confidential Information, or the Licensor’s Intellectual Property Rights with respect thereto.
9.3 The Licensor has the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that the Licensor brings such an action or proceeding then the Licensee shall cooperate and provide full information and reasonable assistance to the Licensor and its legal representatives in connection with any such action or proceeding.
10. LIMITATION OF LIABILITY.
EXCEPT FOR (A) THIRD PARTY CLAIMS COVERED BY THE INDEMNIFICATION OBLIGATIONS, OR (B) NONPAYMENT OF FEES DUE AND PAYABLE BY LICENSEE UNDER THESE TERMS AND CONDITIONS, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT WILL BE LIMITED TO THE AMOUNT PAID BY THE LICENSEE TO THE LICENSOR UNDER THE CONTRACT DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH LOSS IS FORSEEABLE AND EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH OF CONTRACT.
11. TERM AND TERMINATION.
11.1 Term. The terms and conditions of the Agreement will continue in full force and effect to the extent necessary to give effect to the Contract.
11.2 Renewal of Contract. Unless otherwise set forth in the Contract, the Contract shall automatically renew for a term of twelve (12) months unless either party provides written notice of intent not to renew no later than ninety (90) days prior to the expiration of the Contract’s then current term. If the Contract is automatically renewed as set forth in this Clause 11.2, unless otherwise set forth therein, the Licensor may increase Fees no more than once per annum.
11.3 Termination for Breach. In the event of any material breach of the Contract or these Terms and Conditions the non-breaching party may terminate the Contract by giving 30 days prior written notice to the other party; provided, however, the Contract will not terminate if the other party has cured the breach prior to the expiration of such 30 day period or 15 days if the breach is the Licensee’s failure to pay Fees when due.
11.4 Termination for Insolvency. Either party may summarily terminate the Agreement for cause by providing written notice, without opportunity to cure, in the event that: (a) the other party fails to function as a going concern; (b) a receiver, trustee, or other custodian for the other party or its assets is appointed, applied for, or consented to; (c) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course; (d) the other party makes an assignment for the benefit of creditors; (e) the other party is liquidated or dissolved; or (f) any proceedings are commenced by or against the other party under any bankruptcy, insolvency, or debtor’s relief law and not dismissed within 60 days.
11.5 Effect of Termination. Upon termination of the Agreement, the Licensee shall return to the Licensor all copies of the Licensed Software, Licensor’s Confidential Information, documentation, and all other tangible materials related to the Products, including without limitation, all modifications and derivative works thereof. Unless otherwise set forth in the Contract if the Licensor’s termination is due to a material breach by the Licensee, (a) the Licensee shall pay to the Licensor all Fees due for the remainder of the Contract’s term; (b) all rights granted with respect to the Products will immediately terminate; and (c) the Licensee will delete or transfer to the Licensor any of the Licensor’s Confidential Information, as provided hereunder. Upon termination, where the Licensor is the breaching party, the Licensor will (i) refund any unearned Fees paid by the Licensee prior to the effective date of termination; and (ii) delete or transfer to the Licensee any of the Licensee’s Confidential Information, as provided hereunder.
11.6 Survival. Provisions concerning the parties’ rights and obligations that by the content of the provision operate after termination or are necessary to enforce any right will survive termination of the Contract.
12. GENERAL TERMS.
12.1 Force Majeure. Neither party shall be deemed in breach of these Terms and Conditions to the extent that performance of their obligations (other than Licensee’s payment obligations) or attempts to cure any breach are delayed or prevented by reason of any Force Majeure event, regardless of whether such event was foreseeable. Force Majeure events shall include (but not be limited to): acts of God, fire, natural disaster, outbreak, epidemic, public health emergency, accident, act of government, shortages of materials or supplies, and any and all events beyond the reasonable control of such party, provided that such party gives the other party written notice thereof promptly and, in any event, within 15 days of discovery thereof and uses its reasonable efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure.
12.2 Equitable Remedies. Each party acknowledges that a party’s actual or threatened breach of its confidentiality obligations would likely cause irreparable harm to the non-breaching party that could not be fully remedied by monetary damages. Each party, therefore, agrees that the non-breaching party may seek such injunctive relief or other equitable relief as may be necessary or appropriate to prevent such actual or threatened breach without the necessity of proving actual damages.
12.3 Non-Solicitation. Neither party shall hire, employ, or contract for services, attempt to hire, employ, or contract for services, directly or indirectly through a third party, any current employee of the other party without prior written consent, for a minimum time period of 12 months after termination or expiration of these Terms and Conditions. Either party may hire, employ, or contract for services any previously employed employee or agent of the other party so long as said employee or agent has been separated from such relationship for at least 12 months from the date of such employees’ separation. Notwithstanding the foregoing, either party shall be permitted to hire, employ, or contract for services an employee as a result of a general advertisement for employment.
12.4 Waiver. Neither party will be deemed to have waived any of its rights under these Terms and Conditions by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms and Conditions will constitute a waiver of any other breach of these Terms and Conditions.
12.5 Notices. Notices shall be addressed to that party at its address as set out in the Contract (or to other such address as notified to the other party in writing in accordance with these Terms and Conditions). Wherever one party is required or permitted to give notice to the other pursuant to these Terms and Conditions, such notice shall be deemed given when emailed, delivered in hand, when mailed by registered or certified mail, return receipt requested, postage prepaid, or when sent by a third-party courier service where receipt is verified by the receiving party’s acknowledgment. Any electronic notice to the Licensor shall be to [email protected].
12.6 Third Party rights. No part of these Terms and Conditions or the Agreement is intended to confer rights on any third parties and accordingly the Contracts (Right of Third Parties) Act 1999 shall not apply to these Terms and Conditions or the Agreement.
12.7 Variation. No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Licensor and the Licensee.
12.8 Representations. The Licensor’s employees or agents are not authorised to make any representations concerning these Terms and Conditions or the Agreement unless confirmed by the Licensor in writing. In entering into the Agreement, the Licensee acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
12.9 Errors or Omissions. Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Licensor shall be subject to correction without any liability on the part of the Licensor.
12.10 Severability. The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
12.11 Relationship of Parties. Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Licensor and the Licensee.
12.12 Section Titles. Section titles or references used in these Terms and Conditions shall be without substantive meaning or content of any kind and are not a part of the agreements among the Parties evidenced hereby.
12.13 Governing Law and Venue. These Terms and Conditions and all matters arising out of or relating to the Agreement will be governed by and construed in accordance with the laws of England and Wales. Any dispute between the parties shall fall within the exclusive jurisdiction of the courts of England and Wales.
12.14 Time not of the essence. The Licensor shall use its reasonable endeavours to complete its obligations under the Agreement, but time will not be of the essence in the performance of such obligations.
12.15 Assignment. The Licensee may not assign its rights or delegate its obligations under these Terms and Conditions without the prior written consent of the Licensor except that the Licensee may assign any right or obligation set forth in the Agreement to a successor entity in the event of a merger, consolidation or sale of the Licensee’s entire business or all or substantially all of the Licensee’s shares or assets, provided the assignee agrees in writing to assume all of the Licensee’s obligations and obligations under these Terms and Conditions. Any attempted assignment in violation hereof shall be void and of no force or effect. The Licensor may assign its rights and delegate its duties hereunder at any time without the consent of the Licensee.
12.16 Export Controls. A party will be responsible to obtain any export licenses that may be required under applicable laws prior to its export or re-export of goods or information provided under the Agreement.
12.17 Entire Agreement. The Agreement constitutes the complete agreement between the parties and supersedes all prior, conflicting agreements or representations, written or oral, concerning the subject matter of the Contract, these Terms and Conditions, and any attachments.