WINGX ADVANCE GMBH – TERMS AND CONDITIONS OF BUSINESS

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 11 (LIMITATION OF LIABILITY).

1. INTERPRETRATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Affiliate: any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Authorised User: those employees, agents or representatives of the Customer who are authorised by the Customer and permitted hereunder to use the Services.
Bribery Laws: the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Charges: the charges payable by the Customer in connection with the provision of the Services purchased by the Customer, in accordance with clause 6.
Commencement Date: the date upon which the Contract between the Customer and the Supplier comes into effect, as set out in clause 3.4 in respect of Orders made via the Website and as set out in clause 3.7 in respect of all other Orders.
Conditions: these terms and conditions as amended from time to time pursuant to clause 17.3.
Confidential Information: any commercial, financial or technical information, information relating to the Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract.
Contract: the contract between the Supplier and the Customer for the supply of Services incorporating these Conditions and the Customer’s Order, and including all their respective schedules, attachments and annexures.
Control: means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company.
Controller: shall have the meaning given to it in applicable Data Protection Laws from time to time.
Customer: the named party in the Contract that has agreed to purchase the Services from the Supplier and whose details are set out in the Order.
Customer Default: has the meaning given in clause 5.2.
Dashboard: the software application provided by the Supplier which presents or permits the presentation of market data and, if applicable, its analysis by the Customer.
Data Protection Laws: as binding on either party or the Services:
(a) the GDPR;
(b) the Data Protection Act 2018;
(c) any laws which implement any such laws; and
any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.
Data Protection Supervisory Authority: any regulator, authority or body responsible for administering Data Protection Laws.
Data Subject: shall have the meaning given to it in applicable Data Protection Laws from time to time.
Deliverables: the deliverables which the Supplier will provide in supplying the Services, including (but not limited to), for the avoidance of doubt, any Dashboard, report or other document or matter provided by the Supplier to the Customer in the course of its provision of the Services.
Force Majeure: an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, a pandemic or other medical or health emergency, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, change in law, the termination or refusal to grant the renewal of an existing licence, permission or authority by a third party, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay.
GDPR: means the General Data Protection Regulation, Regulation (EU) 2016/679.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all 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 which subsist or will subsist now or in the future in any part of the world.
International Organisation: shall have the meaning given to it in applicable Data Protection Laws from time to time.
Order: an offer by the Customer to purchase the Services, made either via the Website in accordance with clause 3.3 or using an Order Form in accordance with clause 3.8.
Order Confirmation: the Supplier’s acceptance of the Customer’s Order, as provided in accordance with clause 3.6 in respect of Orders made via the Website and in accordance with clause 3.9 in respect of Orders made using the Order Form.
Order Form: the Supplier’s order form which shall specify the Services that the Customer has indicated that it wishes to purchase from the Supplier subject to these Conditions.
Personal Data: shall have the meaning given to it in applicable Data Protection Laws from time to time.
Personal Data Breach: shall have the meaning given to it in applicable Data Protection Laws from time to time.
processing: has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly).
Processor: shall have the meaning given to it in applicable Data Protection Laws from time to time.
Protected Data: Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract.
Services: the services, including the provision of the Deliverables and any Subscription, to be supplied by the Supplier to the Customer as further described in the Specification.
Specification: the description or specification of the Services:
(i) set out in, or attached to the Order Form; or
(ii) which appears on the Website at the time the Customer makes its Order.
Sub-Processor: any agent, sub-contractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data.
Subscription: any subscription for market intelligence reports or in relation to the use of Dashboards supplied by the Supplier or its affiliates.
Subscription Term: the term for any Subscription purchased by the Customer set out in the Order Confirmation.
Supplier: WINGX Advance GMBH.
Website: www.wingx-advance.com.
VAT: value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Services.

1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(b) Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c) A reference to writing or written includes fax and email.

2. ABOUT THE SUPPLIER

2.1 The Supplier (Wingx Advance GmbH (HRB 108335)) is a company registered in Germany, whose registered office is situated at Kiebitzhof 6, Hamburg, Germany. The Supplier’s main trading address Kiebitzhof 6, Haus G, 22089 Hamburg, Germany.

2.2 To contact the Supplier, please email to the email address given on the Order Form, or specified on the Website. Details of how to give the Supplier formal notice of a matter under the Contract are set out in clause 14.8.

2.3 The Supplier maintains professional indemnity insurance.

3. BASIS OF CONTRACT

Application of these Conditions
3.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

3.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
Ordering through the Website
3.3 In order to place an Order via the Website, the Customer must follow the onscreen prompts provided. Each Order made via the Website is an offer by the Customer to buy the Services, Subscriptions or Deliverables specified in the order, subject to these Conditions.

3.4 The Supplier’s Order process set out on the Website allows the Customer to check and amend any errors before submitting its order to the Supplier. The Customer is responsible for ensuring that its Order is complete and accurate.

3.5 After the Customer has placed its Order on the Website, it will receive an email from the Supplier acknowledging that the Supplier has received it, although this does not signify the Supplier’s acceptance of the Customer’s order. The Supplier’s acceptance of the Customer’s Order made via the Website will take place as described in clause 3.6.

3.6 The Supplier’s acceptance of the Customer’s Order made via the Website takes place on the Supplier sending its Order Confirmation by email to the Customer, at which point and on which date the Contract between the Customer and the Supplier will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation issued by the Supplier.

3.7 If the Supplier is unable to supply the Customer with the Services it has offered to purchase for any reason, the Supplier will inform the Customer of this by email as soon as is reasonably practicable and the Supplier will not process the Customer’s Order in respect of the Services that it cannot supply. If the Customer has already paid for the Services it has offered to purchase and which the Supplier cannot provide, the Supplier will refund to the Customer the full amount paid.
Orders made using the Order Form
3.8 The Customer’s signature and submission of the completed Order Form to the Supplier constitutes the Customer’s Order.

3.9 The Customer’s Order submitted to the Supplier in accordance with clause 3.8 shall only be deemed to be accepted when the Supplier issues its Order Confirmation to the Customer in respect of the applicable Order via email, at which point and on which date a Contract shall come into existence.

General provisions regarding Orders

3.10 Any descriptive matter or advertising issued by the Supplier are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

3.11 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

3.12 Any quotation given by the Supplier shall not constitute an offer to provide the Services or any of them to the Customer, and is only valid for a period of 10 Business Days from its date of issue.

4. SUPPLY OF SERVICES

4.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

4.2 The Supplier shall use all reasonable endeavours to meet any performance dates or delivery dates specified either in the Order Form or set out on the Website, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

4.3 The Supplier reserves the right to amend the Specification at any time after Order Confirmation to the extent necessary for it to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

4.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

5. CUSTOMER’S OBLIGATIONS

5.1 The Customer shall:

(a) ensure that the details it provides on the Order Form, any information it gives thereon or during the order process set out on the Website and any information it provides in the Specification are complete and accurate;

(b) co-operate with the Supplier in all matters relating to the Services;

(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d) obtain and maintain all necessary licences, permissions and consents which may be required for its receipt and / or use of the Services before the date on which the Services are to start;

(e) comply with all applicable laws and regulations with respect to its activities under or in relation to the Contract;

(f) ensure that each Authorised User of any Deliverable (including any Dashboard) uses the same in accordance with these Conditions, and shall be responsible for any losses, liabilities, costs or expenses incurred by the Supplier as a result of any use of any Deliverable not in accordance with these Terms and /or applicable law; and

(g) comply with any additional obligations as set out in the Specification.

5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and

(c) the Customer shall reimburse the Supplier on written demand any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the applicable Customer Default.

6. CHARGES AND PAYMENTS

6.1 The Charges payable by the Customer in connection with the Supplier’s provision of the Services purchased by the Supplier shall be:

(a) in respect of orders made via the Website, those that appear on the Website at the time the Customer submits its Order; and

(b) in respect of all other Orders, those set out in the Order Form.

6.2 The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by it in connection with its provision of the Services.

6.3 The Supplier reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the UK Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

6.4 The Customer shall be obliged to pay the Charges applicable to the Supplier’s provision of the Services purchased by the Customer in advance. The Supplier shall invoice the Customer on the Commencement Date and at such intervals as may be specified in the Order Form or on the Website (as applicable), in respect of the Charges payable by the Customer in respect of the next calendar quarter.

6.5 The Customer shall pay each invoice submitted by the Supplier:

(a) within 20 days of the date of the invoice; and

(b) without deduction or set off; and

(c) in full and in cleared funds to the bank account last nominated in writing by the Supplier.
Time for payment shall be of the essence of the Contract.
6.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. The Customer shall pay any applicable VAT to the Supplier on its receipt of a valid VAT invoice.

6.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting or prejudice to any other remedy the Supplier may have, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

6.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. INTELLECTUAL PROPERTY RIGHTS

7.1 All Intellectual Property Rights:

(a) in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer); and

(b) in the Dashboards or any other software, analysis, Deliverable or other matter provided by the Supplier to the Customer in the context of the Supplier’s provision of the Services,

shall the sole property of the Supplier or its licensors.

7.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a non-exclusive, royalty-free limited, revocable (subject to the terms hereof) licence during the term of the Contract to use the Dashboards and use or copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services, the Subscription and the Deliverables for its own internal business purposes.

7.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.2 and shall not use any such rights for any purpose or to any extent not expressly permitted under clause 7.2.

7.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier to the extent necessary for the purpose of providing the Services to the Customer.

8. SUBSCRIPTION

This clause shall only be applicable if the Customer has purchased a Subscription.

8.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable, limited right to permit Authorised Users in a maximum number not exceeding the amount specified by the Supplier in the Order Confirmation (or if no amount is specified thereon, the amount specified on the Order Form or on the Website (as applicable)) to use the Services or Deliverables in respect of which the Customer has purchased a Subscription (the Subscribed Services) solely for the Customer’s internal business purposes during the Subscription Term.

8.2 The Customer shall:

(a) not use or access, or permit any third party which is not an Authorised User to use or access a Subscribed Service or any data which appears thereon (or which can be derived therefrom) for any purpose other than that which is set out herein or which has been expressly agreed in writing by the Supplier;

(b) keep access to each Subscribed Service secure and shall take all reasonable measures to ensure that only Authorised Users are able to access the Subscribed Services; and

(c) not attempt or permit a third party to attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all or any part of a Dashboard or the Subscribed Service accessed or used by it or a third party pursuant to a Subscription.

9. ANTI BRIBERY

9.1 For the purposes of this clause 9 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
9.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
(a) all of that party’s personnel;
(b) all others associated with that party; and
(c) all of that party’s sub-contractors;
involved in performing the Contract so comply.
9.3 Without limitation to clause 9.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
9.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 9.
9.5 Any breach of this clause 9 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 13.2(a).

10. PROCESSING OF PERSONAL DATA

10.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.

10.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.

10.3 The Supplier shall:

(a) only process (and shall ensure its personnel only processes) the Protected Data in accordance with the Contract (including when making any transfer to which clause 10.8 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
(c) without prejudice to clause 10.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
10.4 Taking into account the state of technical development and the nature of processing, the Supplier shall implement and maintain reasonable technical and organisational measures to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access, having regard to the nature of the processing it is carrying out and in compliance with its obligations under Data Protection Laws.

10.5 The Supplier shall:

(a) not permit any processing of Protected Data by any agent, subcontractor or other third party (except its or its Sub-Processors’ own employees in the course of their employment that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the written authorisation of the Customer;

(b) prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 10 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;

(c) remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and

(d) ensure that all [natural] persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.

10.6 The Customer authorises the Sub-Processors disclosed in writing by the Supplier prior to the Commencement Date and set out in the Order Confirmation.

10.7 The Supplier shall (at the Customer’s cost):

(a) assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR (and any similar obligations under applicable Data Protection Laws) taking into account the nature of the processing and the information available to the Supplier; and

(b) taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
10.8 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the EEA or to any International Organisation without the prior written authorisation of the Customer.

10.9 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 10 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 10.9).

11. LIMITATIONS OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

11.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b) fraud or fraudulent misrepresentation; or

(c) breach of the terms implied by section 2 of the UK Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.

11.2 Subject to clause 11.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a) loss of profits;

(b) loss of sales or business;

(c) loss of agreements or contracts;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; or

(g) any indirect or consequential loss.

11.3 Subject to clause 11.1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to sum of the total Charges paid by the Customer under the Contract.

11.4 The limitations and exclusions of liability set out in this clause 11 shall not apply in respect of any indemnities given by the Customer under the Contract.

11.5 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

11.6 This clause 11 shall survive termination of the Contract.

12. INDEMNITY
The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made by a third party against the Supplier as a result of or in connection with the Customer’s breach of the Contract.
13. TERMINATION

13.1 Unless terminated earlier in accordance with clause 13.2 or this clause, the Contract shall continue for the period specified in the Order Form (Initial Term) and shall automatically extend for a further period of the same duration as the Initial Term (Extended Term) at the end of the Initial Term and at the end of each Extended Term. Either party may give written notice to the other party not later than 60 Business Days before the end of the Initial Term or the relevant Extended Term, to terminate this Contract at the end of the Initial Term or the relevant Extended Term, as the case may be.

13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b) there is a change of control of the Customer.

13.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract, the Customer’s rights under or in respect of the Subscription or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events or circumstances listed in clause 13.2(b) to clause 13.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any such event or circumstance.

14. CONSEQUENCES OF TERMINATION

14.1 On termination of the Contract:
(b) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(c) the Customer shall return any materials, documents or other items provided to it by the Supplier and not purchased by the Customer hereunder and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract; and
(d) all the Customer’s rights in respect of its receipt of the Services, the Customer’s rights under or in respect of any Subscription and / or any right to use any Deliverable licensed to the Customer pursuant to the Contract shall immediately terminate.
14.2 The termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

14.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

15. CONFIDENTIALITY

15.1 The Customer shall keep confidential all Confidential Information of the Supplier and of its Affiliates and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
(a) any information which was in the public domain at the date of the Contract;
(b) any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
(c) any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or
(d) any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract
except that the provisions of clauses15.1(a) to 15.1(c) shall not apply to information to which clause 15.4 relates.
15.2 This clause shall remain in force for a period of five years from the Commencement Date and, if longer, three years after termination of the Contract.
15.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
15.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any of the provisions of clause 15.1
16. FORCE MAJEURE
16.1 Neither party shall have any liability for any failure or delay in performance of this Agreement to the extent the same results from Force Majeure for as long as such event means that performance of the agreement is not possible or is delayed.
16.2 The party affected by such Force Majeure shall promptly notify the other party in writing when such Force Majeure causes a delay or failure in performance and when it ceases to do so. If such Force Majeure continues for a continuous period of more than three months, either party may terminate this Agreement by written notice to the other party.
17. GENERAL

17.1 Assignment and other dealings.
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
17.2 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

(c) Nothing in this clause shall limit or exclude any liability for fraud.

17.3 Variation.

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.4 Waiver.
A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
17.6 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the address specified in the Order Form.

(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by email, at 9.00 am on the next Business Day after transmission.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

17.7 Third party rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 or any other legislation to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

17.8 Governing law.

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

17.9 Jurisdiction.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

City / Date: Hamburg, June 29th, 2020