asterlogic

1.1. Master Terms and Conditions

These are the Master Terms and Conditions for Asterlogic Limited, a company registered in England and Wales (registered company number 09309795), with registered office at Regent House, 316a Beulah Hill, London, United Kingdom, SE19 3HF (the “Supplier”) in relation to its Services (as defined below).
The Supplier wishes to provide, and the Customer wishes to have the right to access pursuant to the terms of the Agreement, the Services, including a subscription to the Cloud Services, and the Premise Software (all as defined below).

1.2. Definitions

“Agreement” means these Master Terms, the Services Agreement and any special or additional terms which are agreed between and you (the “Customer”) in writing and signed by an authorised signatory of each such party from time to time;
“Charges” means all charges (including any Licence Fees) of the Supplier as specified in the Services Agreement or as otherwise agreed in writing between the Customer and the Supplier;
“Commencement Date” means the date specified in the Services Agreement;
"Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures" means as defined in the Data Protection Legislation;
“Current Release” means the most recent version of the Software which is made available by the Supplier;
“Cloud Services” means the Supplier’s cloud services relating to the Software as detailed in the Services Agreement;
"Data Protection Legislation" means the UK Data Protection Legislation and any other United States Federal, State or local legislation relating to personal data 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) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party;
“Equipment” means all the Customer’s computer hardware on which the Software is installed or downloaded as appropriate by way of the Customer’s server to secure the computer configuration of the Software in accordance with the Specification; “Initial Term” means the period of 36 calendar months from the Installation Date unless otherwise specified in the Services Agreement;
“Installation Date” means the initial date on which the Software is first used live or operated on any of the Equipment;
“IPR” means all intellectual property rights including, without limitation, all patents, copyright and all related rights, trademarks and service marks, trade names and domain names, design rights, database rights (including rights in the design or structure of any database), confidential knowhow, database rights and all other similar rights (whether registered or unregistered) and all applications for the same anywhere in the world;
“Licence” means the Licence specified in clause 2;
“Licence Fees” means the fees for the use of the Software as set out in the Services Agreement as may be increased by intimation by the Supplier to the Customer from time to time;
“Licenced Materials” means the Software, Current Releases and any other material supplied to the Customer with the Software or as part of the Services;
“Licenced Users” means such of the Customer’s employees, contractors, or agents, or any other Customer authorised representatives or entities, directly or through outsourcing vendors that are not competitors of the Supplier that are allocated by the Supplier to run the Software in terms of the Services Agreement, Licences are sold on a named user basis with only one name change allowed per 12-month period per named user licence (other name changes may be permitted at the Supplier’s discretion);
“Maintenance Release” means any release of the Software which corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a Current Release;
"Permitted Purpose" means the use of the Platform by the Customer to monitor and manage productivity of its Licenced Users;
“Personally Identifiable Information” or “PII” refers to any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.
“Platform” means the cloud software platform operated by the Supplier and that will be made available to the Customer as a service via the internet under the Services Agreement and these Master Terms;
“Premise Software” means the Supplier Software that gets installed on the Customer site or hardware as detailed in the Services Agreement;
“Renewal Term” means the period defined in clause 12.1;
“Services” means the Supplier’s services as specified in the Services Agreement, including Deployment Services, Training Services and Support Services, all as may be varied by agreement of the Supplier and the Customer from time to time;
“Services Agreement” means the agreement between Genesys and the Customer for the supply of the Services in accordance with these Master Terms;
“Service Hours” means the standard hours during which the Services will be provided as specified by the Supplier;
“Software” means the computer programs specified in the Services Agreement including any Maintenance Releases but excluding Source Code material and all preparatory design material;
“Source Code” means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software.
“Specification” means the functional specification (if any) for the Software together with the minimum and/or optimum system environment or hardware specifications for use of the Software published by the Supplier on the Website;
“Standard Support Hours” means the standard hours during which the Support will be provided as specified in clause 7.4;
“Support” means the support service comprising advice by telephone, email, the Website or other means available to the Supplier as may be appropriate and necessary to resolve the Customer’s difficulties and queries in relation to operation of the Software;
“Term” means the period set out in the Services Agreement including, without prejudice to that generality, the Initial Term and any Renewal Term;
“Training Services” means those activities provided by Supplier that serve to educate the Licensed Users and/or Customer on how to make effective use of the Services, to the extent that such activities are expressed herein.
"UK Data Protection Legislation" means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and
“Website” means the Supplier’s website www.asterlogic.co.uk as updated from time to time.

1.3. Interpretation

In the event of any conflict between the Services Agreement and these Master Terms, the terms of the latter shall prevail.

2. Grant of Licence

2.1. Subject to the terms of the Agreement, in consideration of the payment to the Supplier by the Customer of the Licence Fees and the Charges, the Supplier grants to the Customer a non-exclusive and non-transferable licence to use the Software (‘the Licence’) during the Term.
2.2. The Licence entitles the Customer to use the same on the Equipment in accordance with this Agreement.
2.3. The initial order via the Services Agreement, will act as a minimum licence commit, to which the Customer will not drop below during the term of the contract. Every additional order via a new Services Agreement thereafter will increase the minimum commit by the ordered licence amount.

3. Platform

3.1. The Supplier will make available the Platform to the Customer by setting up an account for the Customer on the Platform and providing to the Customer login details.
3.2. Subject to the limitations set out in these Master Terms, the Supplier hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose via any standard web browser during the Initial Term and any Renewal Term.
3.3. The licence granted by the Supplier to the Customer under Clause 3.2 is subject to the following limitations, namely (a) the Platform may only be used by the named users identified in the Services Agreement, provided that the Customer may change, add or remove a designated named user in accordance with the procedure set out therein; (b) the Platform must not be used at any point in time by more than the number of named users specified in the Services Agreement, provided that the Customer may add or remove concurrent user licences in by notification to the Supplier.
3.4. Except to the extent mandated by applicable law or expressly permitted in the Services Agreement, the licence granted by the Supplier to the Customer under this Clause 3 is subject to the following prohibitions, namely (a) the Customer must not sub-license its right to access and use the Platform or allow any unauthorised person to access or use the Platform; (b) the Customer must not frame or otherwise re-publish or re-distribute the Platform; and (c) the Customer must not alter or adapt or edit the Platform.
3.5. For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Initial Term or any Renewal Term.
3.6. All IPR in the Platform shall, as between the parties, be the exclusive property of the Supplier.
3.7. The Customer shall use all reasonable efforts to ensure that no unauthorised person will or could access the Platform using the Customer's account.
3.8. The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.
3.9. The Customer must not use the Platform: (a) in any way that is unlawful, illegal, fraudulent or harmful or (b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4. Permitted Use

4.1. The Customer may use the Software only on the Equipment within the United States. The use of the Software on different equipment or outwith the above areas requires the prior written consent of the Supplier and may incur a change in the Charges.
4.2. The Customer shall not:

4.2.1. use or attempt to use the Licenced Materials or any of the Software’s output to, or permit any third party to, provide a data processing service to any third party;
4.2.2. translate or adapt the Licenced Materials for any purpose nor arrange or create derivative works based on the Licenced Materials;
4.2.3. transfer or distribute (whether by licence, sub-licence, loan, rental, sale or otherwise) or otherwise deal in, charge or encumber the Licenced Materials or permit the use of the Licence Materials by any other person or any third party or make available the same to any third party;
4.2.4. make, or permit any third party to make for any purpose (including without limitation for error correction), any alterations, copying, modifications, additions or enhancements to the Software and take steps to prevent the same;
4.2.5. permit any third party to alter, adapt, make error corrections to, decompile, reverse engineer or disassemble the Software or any part of it or permit the Software to be combined with any other programs.

4.3. The Customer shall follow all lawful and reasonable instructions and directions given by the Supplier from time to time in relation to the use of the Licenced Materials
4.4. The Customer shall permit the Supplier, or its agents, on reasonable prior notice, to inspect and have access to any Equipment on which the Software operates and any records kept pursuant to the Agreement, to verify that the use of the Software by the Customer is in accordance with the terms of the Agreement. The Supplier may require the Customer to operate and run a tool or programme provided by the Supplier on the Equipment in order to verify that the use of the Software complies with the terms of the Agreement.
4.5. The Customer shall use appropriate hardware and software to operate the Software in accordance with the Specification.
4.6. The Customer may not use the Software other than as specified in the Agreement.
4.7. The Customer shall ensure compliance with the terms of the Agreement by all of its employees, contractors and sub-contractors.
4.8. The Customer shall ensure that the number of persons using the Software does not exceed the number of Licenced Users.
4.9. The Customer shall ensure that the Software is installed only on the Equipment.
4.10. If the Charges contain or reflect any discount or reduction of the Charges by reason of the Customer agreeing to participate in the Supplier’s marketing efforts, the Customer shall ensure that it so participates in accordance with the Supplier’s reasonable requirements.

5. Extent of permitted reproduction of Premise Software

5.1. The Customer is permitted to make one back-up copy of the Software for its lawful use. The Customer shall record the location of that copy of the Software and shall use all reasonable efforts to prevent unauthorised copying or use of the Software.
5.2. The Customer may only use a back-up copy of the Software by substituting it for the copy the Customer is using.
5.3. The Customer undertakes to effect and maintain adequate security measures and maintain accurate and up-to-date records of the number and location of all copies of the Software or the Licenced Materials and upon prior written notice forthwith shall produce such record to the Supplier, and to supervise and control use of the Software in accordance with the Agreement.

6. Proprietary rights

6.1. The Customer acknowledges that all IPRs in the Licenced Materials and Maintenance Releases and rights in any copies of them shall belong to the Supplier and the Customer shall have no rights, title or interest in or to any of them except the right, as expressly granted under the Agreement, to use them in accordance with the Agreement. The Customer shall do or procure to be done all such further acts and things and shall execute or procure the execution of all such other documents as the Supplier may from time to time require for the purpose of giving the Supplier the full benefit of the provisions of this clause.
6.2. The Customer shall notify the Supplier immediately if the Customer becomes aware of any unauthorised access to, use, copying or disclosure of, any part of the Licenced Materials by any person.
6.3. Nothing in the Agreement shall give to the Customer or any other person any right to access or use the Source Code or constitute any licence of the Source Code.
6.4. The Customer shall not decompile, reverse engineer, disassemble or attempt to derive the Source Code of the Software, save only to the extent permitted by law.

7. Support

7.1. In consideration of the Customer making payment of the Licence Fees and the Charges and the performance by the Customer of all other obligations pursuant to the Agreement, the Supplier agrees to provide the Support in accordance with the terms of the Agreement.
7.2. Maintenance Releases or details of such releases may be issued at the Supplier’s discretion.
7.3. Support covers assistance in relation to significant operational errors that make the program set of the Software unusable when operated in conformity with the Specification, any online user instructions in any help function in the Software. Such errors shall be notified by the Customer to the Supplier’s customer support department in the manner specified on the Website. The Supplier will use reasonable efforts to attempt to correct errors or assist the Customer to avoid errors or, at the Supplier’s sole option, pursue other means toward a mutually satisfactory solution.
7.4. Support will be provided during the hours of 9.00am to 5.00pm Monday to Friday US Eastern Time, excluding public holidays and any other date where the Supplier’s business is closed, details of which will be published on the Website.
7.5. The provision of any Support outside the Standard Support Hours is at the Supplier’s sole discretion. Charges in respect of all time spent in providing any Support outside the Standard Support Hours will be invoiced to the Customer at the Supplier’s discretion at its then current rates.
7.6. The Supplier will use reasonable efforts to provide the Support promptly having regard to the availability of personnel, necessary supplies and facilities.
7.7. If the Customer makes unreasonable, excessive or inappropriate use of the Support, then the Supplier may at its sole discretion either suspend the Support or charge additional charges in respect of time spent supplying such Support at the then current rates.
7.8. The Support is provided to the Customer as part of the supply of the Licenced Materials. Support is charged as part of the Licence Fees.

8. Customer Obligations

8.1. The Customer undertakes to:

8.1.1. satisfy itself that the Software meets the needs of the Customer’s business. It is the Customer’s sole responsibility to determine that the Software is ready for operational use in the Customer’s business before the Software is accessed online by live business users.
8.1.2. allow the Software to transmit data to the Supplier, at any time, to enable the Supplier to check whether the Customer is using a Current Release or enable the Supplier to prompt the Customer when a Current Release is available.
8.1.3 ensure that it complies fully with any and all legislation or other provisions having force in law in relation to the Customer’s use and operation of the Software on the Equipment and the Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer’s breach of this Clause 8.1.3.

8.2. In relation to the Services, the Customer shall:

8.2.1. use all reasonable efforts to ensure that the Current Release and the Equipment are used in a proper manner by competent trained employees only or by persons adequately trained under the Customer’s supervision;
8.2.2. ensure that each Maintenance Release or Current Release the Supplier issues to the Customer is installed and implemented as soon as is reasonably possible and, in any event, not later than one (1) month from the Customer being informed that a Maintenance Release or Current Release is available;
8.2.3. notify the Supplier promptly by notice in writing if the Software is not operating correctly or of any other problem with the Software;
8.2.4. co-operate with the Supplier’s staff as reasonably required to enable the Supplier to perform the Support and Services and provide facilities for remote testing and diagnostic purposes;
8.2.5. provide the Supplier’s staff with access to the Equipment during the Standard Support Hours and at such other times as the Supplier may request on reasonable prior notice or as may otherwise be expressly agreed with the parties;

8.3. The Supplier reserves the right to refuse to provide any Support and/or Services to the Customer, if in the Supplier’s sole opinion, the Customer is not compliant or the Supplier anticipates non-compliance with any provision of the Agreement.
8.4. If the Supplier is delayed or impeded or obliged to spend additional time or incur additional expenses in the performance of any of its obligations under the Agreement as a result of the Customer’s acts or failure to act or omissions (including the provision of any incorrect or inadequate data or delay or failure to provide information or instructions or perform the Customer obligations under the Agreement), then the Customer shall pay to the Supplier any additional reasonable costs and expenses incurred by the Supplier.

9. Payment Terms

9.1. The Customer agrees to pay the Supplier the Charges every three months in advance or within 30 days of the date of the Supplier’s invoice by electronic payment throughout the Term of the Agreement, unless specified otherwise in the Services Agreement and except for any amounts disputed by the Customer in good faith. The first term payment shall fall due on the Installation Date and subsequent payments thereafter on the same day every three months until expiry of the Term. The first term payment shall fall due on the Installation Date and subsequent payments thereafter on the same day every three months until expiry of the Term. The Customer shall notify the Supplier in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within seven days after the Customer's receipt of such invoice. Invoices for which no such timely notification is received shall be deemed accepted by the Customer as true and correct, and the Customer shall pay all amounts due under such invoices in accordance with this clause 9.1. The parties shall seek to resolve all such disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in clause 26. Notwithstanding anything to the contrary, each party shall continue performing its obligations under the Agreement during any such dispute, including, without limitation, payment by the Customer of all undisputed amounts due and payable hereunder.
9.2. Unless otherwise agreed, Charges for any services outwith the Services Agreement are payable within 30 days of the date of the Supplier’s invoice.
9.3. The Customer’s access to the Software may be suspended until the Supplier has received any payment that is due in full and in cleared funds in accordance with the Agreement.
9.4. All amounts due under the Agreement are exclusive of VAT and any other taxes, duties or levies. Charges are exclusive of any travel, subsistence and other out of pocket expenses reasonably incurred by the Supplier in respect of the provision of such Services. The Supplier shall invoice to the Customer, and the Customer agrees to pay in cleared funds, any VAT or other taxes and expenses incurred within 30 days of the date of the invoice.

9.4.1. Any discounts offered are applicable only for the initial 12 months of the Agreement, then shall expire, unless otherwise agreed between both parties.

9.5 If any payment due under the Agreement or any other Agreement between the parties is in arrears, the Supplier reserves the right without prejudice to any other right or remedy to:

9.5.1. charge interest on such overdue sum on a daily basis from the original due date until actual payment of the overdue amount whether before or after judgement at a rate of 3% per annum above Natwest UK Bank plc’s base rate from time to time; and/or
9.5.2 suspend or terminate the provision of any Support and/or Services under the Agreement until any outstanding payment is both received and cleared with interest due on the overdue amount; and/or
9.5.3 limit any access to the Software until any outstanding payment is both received and cleared with interest due on the overdue amount; and/or
9.5.4 terminate the Agreement pursuant to clause 12.

10. Warranty

10.1. The Supplier warrants that the Software will conform in all material respects to the Specification for a period of 180 days from the date of the Installation Date (Warranty Period). If within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from (i) the Customer, or anyone acting with the authority of the Customer, having amended the software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier or (ii) the loading of the Software on to equipment which has not been specified by the Supplier or suitably configured, the Supplier shall at the Supplier’s option do one of the following, at no cost to the Customer:

10.1.1. repair the Software;
10.1.2. replace the Software; or
10.1.3. terminate the Agreement with immediate effect by providing written notice to the Customer, in which case the Supplier shall refund any Charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination) on return of the Software and all copies thereof, provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of the defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

10.2. The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
10.3. The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
10.4. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Agreement, the Supplier gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
10.5. The Customer acknowledges that complex software is never entirely free from security vulnerabilities and subject to the other provisions of the Agreement, the Supplier gives no warranty or representation that the Software will be entirely secure.
10.6. All other conditions, warranties or other terms which might have effect between the parties or implied or incorporated into the Agreement or any collateral contract whether by statute, common law, or otherwise are hereby excluded including implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose or the use of reasonable skill and care.

11. Liability

11.1 Except as expressly stated in clause 11.4, the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, delict (including negligence) or otherwise howsoever, which fall within any of the following categories: (i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise; (ii) loss of profits; (iii)loss of anticipated savings; (iv) loss of business opportunity; (v)loss of goodwill; (vi) loss or corruption of data; or (vii) losses arising out of a force majeure event.
11.2 The total liability of the Supplier, whether in contract, delict (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Charges up to a maximum of an amount equal to the (i) Charges paid for the first 6 months of the Agreement or (ii) if the Agreement has not been in existence for 6 months, the Charges paid.
11.3 The Customer agrees that, in entering into the Agreement, either it did not rely on any representations (whether written or oral) of any kind or 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 this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of the Agreement.
11.4 The exclusions in clauses 10.6 and 11.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for (i) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents or (ii) any other liability which may not be excluded by law.

12. Term & Termination

12.1. The Agreement will commence on the Commencement Date and continue for a period of twelve months (the “Initial Term”), unless terminated earlier in accordance with the Agreement, and shall automatically renew on expiry of the Initial Term for subsequent periods of twelve (12) months (each a “Renewal Term” and together with the Initial Term, the “Term”) and the terms of the Agreement will continue to apply.
12.2. Without affecting any other right or remedy available to the Supplier, the Supplier reserves the right to terminate the Agreement at any time without refunding the Charges paid by the Customer, if the Customer has failed to pay an invoice from Supplier by direct debit or otherwise in accordance with the Agreement and where such sum remains unpaid for 30 days from the due date or where, in the Supplier’s reasonable opinion, the Customer’s system and/or the Equipment has ceased to be capable of running the Software successfully for any reason.
12.3. The Customer may terminate the Agreement by giving not less than ninety (90) days prior written notice to take effect before the expiry of the Initial Term or any Renewal Term, but will not be entitled to any refund of any Charges paid under the Agreement.
12.4. Either party shall be entitled to terminate the Agreement forthwith by notice in writing to the other if the other:

12.4.1. is in material breach of the Agreement and either that breach is incapable of remedy, or the other party fails to remedy the breach within thirty (30) days of receipt of written notice setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;
12.4.2. by either party, if the other party (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
12.4.3. Termination of the Licence, however caused, shall not affect the rights of either party under the Agreement which may have accrued up to the date of termination. On termination of the Agreement the Licence shall terminate and accordingly the Customer’s right to use the Licenced Materials will automatically cease and at the Supplier’s option, the Customer shall either be required to return all copies of them, or delete, destroy or otherwise make permanently unusable the Licenced Materials and certify to the Supplier in writing that this has been done within fourteen (14) days of the date of termination. On expiry or earlier termination of the Agreement, the Customer’s right to use the Software will cease and the Customer will be given notice of the date that access to the Software will be removed without further warning.

13. Force majeure

No party shall be liable to the other for any delay or non-performance of its obligations under the Agreement arising from any cause beyond its control. For the avoidance of doubt, nothing in this clause 13 shall excuse the Customer from any payment obligations under the Agreement. If any such event continues for more than ninety (90) days and provided substantial performance is still impeded either party may terminate the Agreement forthwith by prior written notice without prejudice to the accrued rights of either party.

14. Assignation

The Supplier may assign, sub-contract or otherwise transfer any of its rights and obligations under the Agreement without the Customer’s consent. The Customer many not assign, sub-contract or otherwise transfer any of its rights and obligations under the Agreement with the prior written consent of the Supplier.

15. Notices

Any notice, request, claim, demand, or other communication between the parties required or permitted by the Agreement, or otherwise made in connection with the Agreement (“Notice”), must be in writing and will be deemed effective: (a) when delivered in person; (b) on the second business day if transmitted by international express courier to a physical address (not a PO Box), with confirmation of delivery; or (c) upon confirmation of receipt if sent by electronic mail. In each of the foregoing cases, each Notice must be sent to the relevant addresses specified in the Agreement (or such other address for a party as specified in a Notice given in accordance with this Article).

16. Severability

If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

17. Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

18. Entire Agreement

The Agreement and any document expressly incorporated in it contains the entire and only agreement between the parties and supersedes all previous agreements between the parties.

19. Third party rights

A person who is not party to the Agreement shall have no right to enforce any term of the Agreement. The parties do not confer any rights or remedies upon any person other than the parties to the Agreement and their respective successors and permitted assigns.

20. Data Protection

20.1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 20 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 20, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the federal, state, and local data protection laws of the United States as well as UK Law; and Domestic UK Law means the Data Protection Legislation from time to time in force in the UK and any other law that applies in the UK.
20.2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.
20.3. Without prejudice to the generality of clause 20.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.

21. Confidentiality

From time to time during the Term, either party (as the "Discloser") may disclose or make available to the other party (as the "Recipient") information about its business affairs, products, services, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in visual, written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential information shall also include customer, supplier, or personnel names and other information related to customers, suppliers, or personnel, pricing policies and financial information, in each case whether or not reduced to writing or other tangible form, and any other trade secrets. Confidential Information shall not include information that, at the time of disclosure: (i) is or becomes generally available to the public other than as a result of any breach of this clause 21 by the Recipient or any of its representatives; (ii) is obtained by the Recipient or its representatives on a non-confidential basis from a third-party that, to the Recipient's knowledge, was not legally or contractually restricted from disclosing such information; (iii) was in the Recipient's or its representatives' possession prior to disclosure by the Discloser hereunder; (iv) was or is independently developed by the Recipient or its representatives without using of any of the Discloser's Confidential Information; or (v) is required to be disclosed under applicable federal, state, or local law, regulation, or a valid order issued by a court or governmental agency of competent jurisdiction. The Recipient shall: (A) protect and safeguard the confidentiality of the Discloser's Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (B) not use the Discloser's Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under the Agreement; and (C) not disclose any such Confidential Information to any person or entity, except to the Recipient's representatives who need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Recipient shall be responsible for any breach of this clause 21 caused by any of its representatives. On the expiration or termination of the Agreement, at the Discloser's written request, the Recipient and its representatives shall promptly return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser's Confidential Information, or destroy all such copies and certify in writing to the Discloser that such Confidential Information has been destroyed. In addition to all other remedies available at law, the Discloser shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any breach or threatened breach of this clause 21.

22. Governing law and Jurisdiction

The formation, interpretation and performance of the Agreement shall be governed by the laws of the State of California without reference to principles of conflicts of laws.

23. Marketing and use of Customer Name

Without the Customer’s prior written consent, the Supplier shall not, and shall cause its subcontractors, suppliers and agents not to, engage in advertising, promotion or publicity related to the Agreement, or make public use of any Customer identification in any circumstances related to the Agreement or otherwise. “Identification” means any corporate name, trade name, trademark, service mark, insignia, symbol, logo or any other product, service or organization designation, or any specification or drawing owned by the Customer or its affiliates or any representation thereof.

24. Indemnification

24.1 The Supplier shall indemnify and hold harmless the Customer from any claim, suit, or proceeding alleging that any Software, apart from the Content, infringes any Third Party Intellectual Property Rights and shall pay any liabilities, damages, costs, and expenses finally awarded therein or paid in settlement. The Supplier shall be relieved of this obligation unless:

24.1.1 The Customer promptly notifies the Supplier of any such claim, suit or proceeding;
24.1.2 The Supplier has sole control of the defence and all related settlement negotiations; and
24.1.3 The Customer, at Supplier’s expense, provides the Supplier with all assistance, information, and authority reasonably necessary to enable the Supplier to perform the above.

24.2 The Customer will defend the Supplier from and against any third party claims alleging that Customer’s content, Customer Data, methods or processes of doing or conducting business, or customizations (other than those undertaken and performed by the Supplier) infringe or misappropriate a third party’s intellectual property rights, and will indemnify the Supplier from any damages finally awarded, and pay for any settlements agreed to by Customer, with respect to such claims.

25. Not used

26. Disputes

26.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it, (“Dispute”) then except as expressly provided in the Agreement, the parties shall follow the following procedure:

26.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the project managers (or equivalents) of each party shall attempt in good faith to resolve the Dispute;
26.1.2 if the project managers of the parties (or their equivalents) are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the CEOs (or equivalents) of the parties (or their nominees) who shall attempt in good faith to resolve it; and
26.1.3 if the CEOs (or equivalents or their nominees) of the parties fail to resolve the Dispute within 14 days of the Dispute being referred to them, the parties will attempt to settle it by mediation by a mediator appointed by the parties and which shall enable remote participation. The mediation will start, unless otherwise agreed between the parties, within 30 days of one party issuing a request to mediate to the other and the language of the mediation shall be English.

26.2 If a Dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, or if either party fails to participate or ceases to participate in the mediation before the expiry of that period, the dispute shall be finally resolved by international arbitration subject to the judgment of such arbitration being enforceable in each party’s territory.
26.3 No Party may commence any court proceedings in relation to the whole or part of a Dispute prior to the above procedure being followed provided that the right to issue proceedings is not prejudiced by a delay.
26.4 In any action in litigation to enforce or interpret any of the terms of the Agreement, the prevailing party shall be entitled to recover from the unsuccessful party all costs, expenses, (including expert testimony) and reasonable attorneys’ fees incurred therein by the prevailing party.
26.5 In no event shall the litigation of any controversy or the settlement thereof delay the performance of the Agreement.