End User License Agreement
This End User Licence Agreement (this “Agreement”), is entered into on (the “Effective Date”), by and between:
1) Dragonfly Holdings Limited, a company registered in England (Company No. 11725787) having its registered address at 30 Stamford Street, London SE1 9LQ(“Dragonfly“)
- The organisation using the services (“Subscriber”) (Each a “Party” and together, the “Parties”).
- Dragonfly has developed certain software applications and platforms which it makes available to Subscribers via the internet on a pay-per-use basis for the purpose of enhancing project delivery.
- The Subscriber wishes to use Dragonfly’s service in its business operations.
- Dragonfly has agreed to provide and Subscriber has agreed to take and pay for Dragonfly’s service subject to the terms and conditions of this agreement and an evaluation period as agreed.
Section 1 – Interpretation
- The definitions in this clause apply in this agreement:
- Authorised User: those employees, agents and independent contractors of Subscriber who are authorised by Subscriber to use the Services and the Documentation, as further described in clause 18.
- Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
- Confidential Information: means all confidential or proprietary information of, held by, or concerning Discloser or its personnel, licensors, or potential or actual customers, whether in verbal, written, electronic, or other form, including information concerning unique products, commercial, financial and technical information, data, metadata, documents, technology, computer systems and databases, trade secrets, know-how, source code, and computer, data processing and communications architectures, systems, applications, programs, and routines.
- Subscriber Data: the data inputted by Subscriber, Authorised Users, or Dragonfly on Subscriber’s behalf for the purpose of using the Services or facilitating Subscriber’s use of the Services.
- Data Protection Legislation: up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter: unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK; and then any successor legislation to the GDPR or the Data Protection Act 1998.
- Effective Date: the date the Subscriber starts using the Services
- Normal Business Hours: 9.00 am to 5.30 pm local UK time, each Business Day.
- Services: the subscription services provided by Dragonfly to Subscriber under this agreement or any other website notified to Subscriber by Dragonfly from time to time, as more particularly described in the Documentation.
- Software: the online software applications provided by Dragonfly as part of the Services.
- Subscription Fees: the subscription fees payable by Subscriber to Dragonfly which are set out in the Atlassian Marketplace
- Subscription Term: is a minimum of one day.
- Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
- Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
- A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
- A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
- A reference to writing or written includes faxes but not e-mail.
- The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.”
- References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
Section 2 – Grant of License
- Dragonfly will provide the software and data services to Subscriber which are provided using the neuro software product (“Product”).
- Grant of Licence. Subject to the terms of this Agreement, Dragonfly hereby grants to Subscriber, during the Term, a worldwide, fully paid-up, non-transferable, and without the right to grant sub-licenses, licence to access and have use of, and permit Authorised Users to access and have use of the Services, as revised from time to time and agreed between the parties.
- Reservation of Rights. Dragonfly reserves all rights in and to the Services and the Product (collectively, the “Dragonfly Materials”) not expressly granted to Subscriber pursuant to this Agreement. Subscriber acknowledges that as between the Parties, Dragonfly is and will be the exclusive owner of all right, title and interest in Dragonfly Materials, including all Intellectual Property rights therein and thereto. For purposes of this Agreement, “Intellectual Property” means (a) patents, (b) copyrights, moral rights, works of authorship (including copyrights in computer software), and rights in data and databases, (c) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith (“Trademarks”), (d) registrations, applications, renewals and extensions for any of the foregoing in (a)-(c), (d) trade secrets, and (e) rights of privacy and publicity.
- Authorised Users. The Services may be accessed by the number of Subscriber’s employees, sub-contractors and clients. Each Authorised User will be given individual access credentials, and Subscriber shall ensure that its Authorised Users do not share those access credentials with any other individual, partnership, firm, corporation, limited liability company, joint venture, association, trust, unincorporated organisation, or other legal entity or organisation (each, a “Person”). Subscriber acknowledges that Dragonfly may suspend an Authorised User’s use of the Services without notice if Dragonfly determines in its sole discretion, acting reasonably, that Subscriber or any Authorised User is in material and repeated breach of any provision of this Agreement, with reinstatement to occur upon proven compliance with this Agreement.
- Dragonfly shall use best endeavours to make the Services available without interruption, except that the Services will not be considered unavailable if the unavailability results from (a) Dragonfly Maintenance, (b) any use of the Services by Subscriber or the Authorised Users that is inconsistent with the terms of this Agreement, (c) any fault in or failure of Subscriber’s IT Systems (defined below), (d) any failure or fluctuation of Subscriber’s electrical supplies or systems or access to the Internet, (e) Subscriber’s failure to follow reasonable backup and restoration procedures for its IT Systems. For purposes of this Agreement, “Dragonfly Maintenance” means (i) maintenance conducted from 12:00 am Saturday until 12:00 am Monday (London, United Kingdom time) that is necessary to perform preventative and other routine system maintenance functions, (ii) any maintenance that is critical and cannot be reasonably delayed (“Priority Maintenance”). Dragonfly shall notify Subscriber as soon as possible upon scheduling any Maintenance.
- Support. Dragonfly shall during the term, provide, free of charge, support services during normal working hours to Subscriber to assist with resolution of issues impacting or constraining the provision of the Services.
- Dragonfly shall make best endeavours to ensure that the Product does not contain defects. In the event that a defect is introduced or detected, which impacts or constrains the provision of Services, Dragonfly shall provide an emergency release to the Subscriber as soon as practical.
- Changes to the Services. Dragonfly may, from time to time, make changes to the Services that are deemed necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services, (ii) the competitive strength of or market for the Services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Dragonfly shall use best endeavours to ensure that any such change will not materially diminish the features or functionality of the Services. Where changes are applied to Subscriber’s infrastructure, Dragonfly shall adhere to any reasonable change management practices stipulated by Subscriber in advance.
Section 3 – Subscriber obligations
- Use Restrictions. Except to the extent expressly stated otherwise in this Agreement, Subscriber shall not nor attempt to, nor permit, procure, enable or request any other Person to: (a) alter, adapt, reproduce, modify, create derivative works based on, reverse engineer, decompile, reverse compile, reverse assemble, translate or disassemble all or any portion of Dragonfly Materials, except that Subscriber may decompile Dragonfly Materials without Dragonfly’s consent where this is indispensable to obtain the information necessary to achieve the interoperability of Dragonfly Materials with an independently created programme provided that: (i) Subscriber has first requested such information from Dragonfly , and has provided Dragonfly with all information reasonably required by Dragonfly to assess Subscriber’s request; and (ii) Dragonfly has failed to provide Subscriber with the information within 150 days of Subscriber ’s request (or delivery of the relevant information and details); (b) use Dragonfly Materials to (i) create, market or distribute any product or service that is competitive with the Services, or (ii) act as a service bureau on behalf of, or otherwise provide processing or services support to, any Person; (c) transfer, sell, lease, license, sublicense, distribute, disclose, divulge or make available Dragonfly Materials to, or permit use of or access to Dragonfly Materials by, any Person other than Subscriber and Authorised Users; (d) enter into any agreement with, or make any representation to, any other Person that conflicts with, results in any breach of, or constitutes a default under, this Agreement; (e) remove, alter or obscure any Intellectual Property notice or other restrictive notice or legend contained or included in or on any Dragonfly Materials; (f) contest, challenge or otherwise make any claim or take any action adverse to Dragonfly’s ownership of, or interest in, Dragonfly Materials, including the Intellectual Property rights therein; or, (g) access the Services with any crawlers, bots or spiders, or otherwise “scrape” any results obtained through the Services.
- Compliance with Law. Subscriber shall comply with all statutes, statutory instruments, regulations, orders, and other legislative provisions in any jurisdiction including any delegated or subordinate legislation, any enforceable community rights within the European Community and any judgment of a relevant court of law or decision of a tribunal or competent authority (collectively, “Laws”), in each case with respect to Subscriber’s use of the Services and activities under or in connection with this Agreement.
- Further Obligations. Subscriber shall (a) provide Dragonfly with all reasonable cooperation and information needed by Dragonfly to provide the Services and other Dragonfly Materials under this Agreement, (b) ensure that its hardware, software, communications equipment and lines, and all other information technology and communications equipment, systems and networks (“IT Systems”) comply with the technical specifications provided by Dragonfly to Subscriber from time to time for use of the Services, and (c) be solely responsible for procuring and maintaining its network connection and telecommunication links from its systems to Dragonfly IT Systems.
Section 4 – Information Security
- Security Incident Management. Dragonfly shall ensure that the information security status of critical IT environments, applications, computer installations, networks and systems development activity supporting the Services shall be subject to thorough and regular security audits/reviews conducted by an independent function. If a material vulnerability is identified that could adversely affect the reputation or service provided to end clients, the supplier must notify the Subscriber within 72 If an actual or suspected material Security Incident involving Dragonfly Systems has resulted, or may reasonably result, in unauthorised access to or disclosure of the Subscriber or their client’s data, or have any material adverse effect on the services, Dragonfly shall make all reasonable efforts to immediately notify the Subscriber of such actual or potential Security Incident, but in any event such notification shall occur within 72 hours of Dragonfly becoming aware of such Security Incident
- Dragonfly shall identify and implement all required controls consistent with good industry practice for all systems and networks to protect the confidentiality, integrity and availability of the system.
- Penetration testing Prior to the release of new software, application penetration testing will be conducted by Dragonfly to ensure that no security vulnerabilities are present in the product. Any such vulnerabilities introduced by a release and detected by Subscriber, will be rectified by Dragonfly at the earliest opportunity..
- Good Industry Practice. Dragonfly shall ensure that in accordance with good industry practice, workstations connected to the applications and systems forming part of Dragonfly network and all personal computers used by a member of Dragonfly Personnel working in remote locations, shall be configured securely to prevent unauthorised access or changes to data, and protected by physical controls
- Each Party shall use commercially reasonable efforts to ensure that no virus is transmitted from its IT systems or software to the IT systems of the other Party, including through the use of Virus protection, detection and eradication technology consistent with leading industry standards and practices. If either Party identifies any such Virus, that Party promptly shall notify the other Party. If a Virus is introduced to the IT systems of either Party by the other Party’s use or provision of the Services (as applicable) the Party that introduced the Virus shall cooperate at its expense with the other Party to eradicate, and limit the adverse effects of, the Virus on that other Party and that other Party’s IT systems.
Section 5 – Data Protection
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
- The parties acknowledge that if Dragonfly processes any personal data on Subscriber’s behalf when performing its obligations under this agreement, Subscriber is the data controller and Dragonfly is the data processor for the purposes of the Data Protection Legislation (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
- Without prejudice to the generality of clause 31, Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Dragonfly for the duration and purposes of this agreement so that Dragonfly may lawfully use, process and transfer the Personal Data in accordance with this agreement on Subscriber’s behalf.
- Without prejudice to the generality of clause 31, Dragonfly shall, in relation to any Personal Data processed in connection with the performance by Dragonfly of its obligations under this agreement: (a)not transfer any Personal Data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled: (i)Subscriber or Dragonfly has provided appropriate safeguards in relation to the transfer; (ii)the data subject has enforceable rights and effective legal remedies; (iii)Dragonfly complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and (iv)Dragonfly complies with reasonable instructions notified to it in advance by Subscriber with respect to the processing of the Personal Data; (c)assist Subscriber, at Subscriber’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (d)notify Subscriber without undue delay on becoming aware of a Personal Data breach; (e)at the written direction of Subscriber, delete or return Personal Data and copies thereof to Subscriber on termination of the agreement unless required by Applicable Law to store the Personal Data; and (f)maintain complete and accurate records and information to demonstrate its compliance with this clause 34.
- Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
Section 6 – Fees and taxes
- Dragonfly may in its sole discretion provide evaluation copies of the Software, which may not have full functionality, to a Licensee to assess the Software. Any such evaluation copies will be provided under an Evaluation License that limits the period during which the Licensee may download, install, use and operate the Software (“Evaluation Period”) and limits the number of temporary users. On the expiry of the Evaluation Period, the Software will cease to function and the Licensee must remove and delete all copies of the Software in its possession.
- The Subscriber must pay all Fees by their due date notified to the Subscriberand in the manner directed at the time of Purchase of the Software. Failure to pay Fees by the due date will result in the immediate termination of the licenses granted under this Agreement.
Section 7 – Terms and termination
- Termination for Breach. Dragonfly may terminate this Agreement at any time by providing notice of termination to the other Party (the “Breaching Party”) if the Breaching Party commits a material breach of this Agreement, and the breach continues unremedied for a period of 30 days after the Party provides notice to the Breaching Party describing the nature of the breach. Subscriber acknowledges that its failure to pay any fees promptly when due is deemed a material breach.
- Termination for Insolvency. A Party may terminate this Agreement at any time by providing notice of termination to the other Party if that other Party (a) becomes insolvent or unable to pay its debts within the meaning of the Insolvency Act 1986 section 123, (b) makes an assignment for the benefit of its creditors, (c) is dissolved or liquidated, or takes any corporate action for those purposes, (d) has a receiver, administrator, administrative receiver, manager, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (e) seeks relief or if proceedings are commenced against that other Party, or on its behalf, under any bankruptcy, insolvency or debtors’ relief Law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings.
- Effect of Termination. Upon any termination of this Agreement, all rights and licences granted to Subscriber under this Agreement terminate, and Subscriber shall (a) promptly cease exercising those rights and licences, (b) at Dragonfly’s request, take all other actions necessary or appropriate to destroy or return to Dragonfly all copies of any Dragonfly Materials (c) promptly pay to Dragonfly any amounts due under this Agreement up to the date of termination. Subscriber acknowledges that, termination of this Agreement creates no obligation for Dragonfly to refund any amounts paid or payable by Subscriber under this Agreement.
- Clause 17, Clause 24, Section 5, Section 10, Section 11 survive termination of this Agreement.
Section 8 – Representations and warranties
- Mutual Representations. As of and at all times after the Effective Date, each Party represents that (a) it is duly organised and in good standing under the Laws of the jurisdiction of its organisation, (b) it has all requisite power and authority (corporate or otherwise) to execute, deliver and perform its obligations under this Agreement, and (c) its execution, delivery and performance of this Agreement (i) have been duly authorised by all necessary action on its part and (ii) do not and will not: (A) violate, conflict with or result in the breach of any provision of its charter or by-laws (or similar organisational documents), or (B) conflict with, result in any breach of, constitute a default (or event which with the giving of notice and/or lapse of time would become a default) or require any consent under, or give any other Person any right to terminate, amend, accelerate, suspend, revoke or cancel, any other agreement to which it is a party or by which it is bound.
- Dragonfly Dragonfly represents and warrants to Subscriber that to the best of Dragonfly knowledge and belief: (a) Dragonfly has all rights, permissions and licences necessary to provide Dragonfly Materials to Subscriber
- Dragonfly makes no warranty that Dragonfly materials, or any products or results of the use thereof (including the search results or any documents retrieved or not identified by Dragonfly in connection with any search), will meet Subscriber’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code or error free; and Dragonfly disclaims all liability arising from or relating to decisions made by Subscriber or any authorised user based on use of the Services or any search results or any documents retrieved or not identified by Dragonfly in connection with any search, to the fullest extent permitted by applicable Law.
Section 9 – Limitation of liability
- Except as expressly and specifically provided in this agreement: (a)Subscriber assumes sole responsibility for results obtained from the use of the Services and the Documentation by Subscriber, and for conclusions drawn from such use. The Dragonfly shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Dragonfly by Subscriber in connection with the Services, or any actions taken by Dragonfly at Subscriber’s direction; (b)all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and (c)the Services and the Documentation are provided to Subscriber on an “as is” basis.
- Nothing in this agreement excludes the liability of Dragonfly : (a)for death or personal injury caused by Dragonfly’s negligence; or (b)for fraud or fraudulent misrepresentation.
- Subject to clause 45 and clause 46: (a)Dragonfly shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and (b)Dragonfly’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Section 10 – Confidentiality
- Confidential Information. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement.
- Dragonfly’s Confidential Information includes Dragonfly
- Each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
- Each party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
- Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
- The Subscriber acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Dragonfly’s Confidential Information.
- Dragonfly acknowledges that Subscriber Data is the Confidential Information of Subscriber.
- No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- “Confidential Information” excludes information that (a) is or becomes generally available to and known by the public, other than due to Recipient’s breach of this Section 10, (b) Recipient rightfully possessed without a duty of confidentiality before obtaining it from Discloser, (c) Recipient received on an unrestricted basis from a source unrelated to either Party and not under a duty of confidentiality with respect to the information, or (d) Recipient developed independently of the disclosed information and for which Recipient provides documentary evidence maintained contemporaneously with the development that verifies the development was independent, except that Dragonfly Materials are Dragonfly’s Confidential Information notwithstanding any independent development by or on behalf of Recipient, (e) part of a mathematical and algorithmic models which has been improved based on confidential data belonging to any party.
- Unauthorised Disclosure. Each Party acknowledges that (a) the other Party’s Confidential Information is valuable to such Party, and any Information Loss will cause such Party irreparable injury, and (b) the remedies at law for any Information Loss are inadequate and the damages resulting from any breach of this Section 10 may not readily be measured in monetary terms. Without limiting any of either Party’s other rights and remedies, (i) if either Party becomes aware of an actual or threatened Information Loss, such Party shall promptly notify the other Party and cooperate with such Party to regain possession of its Confidential Information and prevent any further Information Loss, and (ii) if there is an actual or threatened Information Loss, such Party may seek any injunctive or other equitable relief that a court of competent jurisdiction deems proper (including an order restraining any threatened or future Information Loss), on use of affidavit evidence or otherwise, and without furnishing proof of actual damages or posting a bond or other surety.
- Duration; Conflict. Each Party’s obligations under this Section 10 regarding the other Party’s Confidential Information terminate two years after the end of the Term, except that Recipient’s obligations survive in perpetuity for Discloser’s Confidential Information that is a trade secret. If a provision in this Agreement conflicts with a provision in any non-disclosure agreement, confidentiality agreement or similar agreement between the Parties, the provision in this Agreement governs to the extent of the conflict.
- Notwithstanding anything in this Section 10 to the contrary, Dragonfly may (a) issue a press release or other public announcement concerning the Services and other arrangements contemplated by this Agreement, subject to Subscriber’s written approval, and (b) include Subscriber’s name and logo in its lists of Dragonfly’ current or former customers on Dragonfly’ website and in its promotional and marketing materials, subject to Subscriber’s written approval.
Section 11 – Indemnity
- The Subscriber shall defend, indemnify and hold harmless Dragonfly against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Subscriber’s use of the Services and/or Documentation, provided that: (a)Subscriber is given prompt notice of any such claim; (b)Dragonfly provides reasonable co-operation to Subscriber in the defence and settlement of such claim, at Subscriber’s expense; and (c)Subscriber is given sole authority to defend or settle the claim.
- Dragonfly shall defend Subscriber, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify Subscriber for any amounts awarded against Subscriber in judgment or settlement of such claims, provided that: (a)Dragonfly is given prompt notice of any such claim; (b)Subscriber provides reasonable co-operation to Dragonfly in the defence and settlement of such claim, at Dragonfly’s expense; and (c)Dragonfly is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, Dragonfly may procure the right for Subscriber to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to Subscriber.
- In no event shall Dragonfly, its employees, agents and sub-contractors be liable to Subscriber to the extent that the alleged infringement is based on: (a)a modification of the Services or Documentation by anyone other than Dragonfly; or (b)Subscriber’s use of the Services or Documentation in a manner contrary to the instructions given to Subscriber by Dragonfly; or (c)Subscriber’s use of the Services or Documentation after notice of the alleged or actual infringement from Dragonfly or any appropriate authority.
- The foregoing states Subscriber’s sole and exclusive rights and remedies, and Dragonfly’s (including Dragonfly’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Section 12 – Force majeure
- Force Majeure. If and to the extent that a Party’s (the “Hindered Party”) performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed by an event or circumstance beyond the reasonable control of that Hindered Party, provided that that Hindered Party is without fault in causing or failing to prevent that event or occurrence, and including (a) explosions, fires, flood, earthquakes, catastrophic weather conditions, diseases, epidemics or elements of nature or acts of God, (b) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, civil disorders, rebellion or sabotage, (c) declarations of states of emergency by any Governmental Authorities, (d) labour disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful, (e) failures or fluctuations in electrical power or telecommunications service or equipment, expropriation, condemnation of facilities or destruction, in whole or part, of the equipment or property necessary to perform the Services, (f) acts or omissions of a third party network operator, or (g) delays or failures caused by third party non-performance (except that a Party will not be excused for delays or failures caused by that Party’s subcontractors or agents unless the event or circumstance is a Force Majeure Event as to that subcontractor or agent) (each, a “Force Majeure Event”), and that non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the Hindered Party will be excused for that non-performance, hindrance or delay of those obligations affected by the Force Majeure Event for as long as that Force Majeure Event continues, on condition that the Hindered Party shall, subject to the cooperation of the other Party, continue to use reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Hindered Party shall notify the other Party as soon as reasonably practicable, and in any event within 5 days, of the occurrence of any Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. As soon as reasonably possible after the cessation of the Force Majeure Event, the Hindered Party shall notify the other Party in writing of the cessation of the Force Majeure Event and shall resume performance of its obligations under this Agreement. The Hindered Party will not be deemed to be in breach of this Agreement, or otherwise be liable to the other Party by reason of any delay in performance or non-performance of any of its obligations to the extent that that delay or non-performance is due to a Force Majeure Event of which it has notified the other Party pursuant to this Section 12 and the time for performance of those obligations shall be extended accordingly. Further, Subscriber shall not be responsible for payment of any amounts if Dragonfly is unable to perform its obligations under this Agreement due to a Force Majeure Event. Subscriber may terminate this Agreement immediately upon notice to Dragonfly in the event a Force Majeure Event involving Dragonfly occurs and continues to exist for a period of 14 consecutive days.
Section 13 – Governing law and disputes
- Governing Law. This Agreement (including this Section), and any dispute or claim between the Parties arising out of or in relation to this Agreement or the performance of the Services, whether in contract, tort or otherwise (each, a “Disputed Matter”), and the Parties’ rights, remedies and obligations under this Agreement, shall be governed by English law. The Parties submit to the exclusive jurisdiction of the English courts for all purposes relating to and in connection with this Agreement and any such dispute or claim referred to in this Section 13.
- Dispute Resolution. The Parties shall cooperate in good faith to resolve any Disputed Matter within 90 days after a Party notifies the other Party of the Disputed Matter (the “Resolution Period”). The Parties acknowledge that their discussions and efforts during the Resolution Period to resolve a Disputed Matter are settlement discussions under applicable rules of evidence and without prejudice to either Party’s legal position. In the event the Parties are not able to resolve a Disputed Matter by the conclusion of the Resolution Period, either Party may commence proceedings in accordance with Clause 67. Solely for purposes of this Clause 67, “Disputed Matters” excludes claims for (i) equitable relief, (ii) indemnification under Section 11, and (iii) that a Party has infringed, misappropriated or otherwise violated the other Party’s Intellectual Property rights.
Section 14 – Miscellaneous
- Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties relating to its subject matter and supersedes any prior agreement, understanding or arrangement between the Parties, whether oral or in writing. Each Party acknowledges and agrees that it does not rely on, and shall have no remedy in respect of, any promise, assurance, undertaking, representation or statement made (whether innocently or negligently) by any other party or any other person except as expressly set out in this Agreement, in respect of which its sole remedy shall be for breach of contract. Nothing in this Agreement shall operate or be construed to exclude or limit any liability of any person for fraud, including fraudulent misrepresentation.
- Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights, remedies or obligations under this Agreement (including by forward or reverse merger, consolidation, dissolution or operation of Law, and whether voluntarily or by a Governmental Authority’s action or order) without the other parties’ prior written consent, which may not be unreasonably withheld, except that a party may assign, delegate, or transfer this Agreement and any of its rights or obligations under this Agreement without the other’s consent to (a) an affiliate or (b) an acquirer of all or a majority of Subscriber’s equity interests, assets, or business to which this Agreement relates (including by a merger, consolidation, or operation of Law). Any purported assignment, delegation or other transfer in contravention of this Section is void. The parties acknowledge that their assignment, delegation or other transfer of this Agreement will not relieve them of their obligations under this Agreement. This Agreement binds and inures to the benefit of the Parties and their respective permitted assignees and successors.
- If a Governmental Authority of competent jurisdiction holds any provision of this Agreement to be unenforceable, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Law) or disregarding it (if not). If an unenforceable provision is modified or disregarded in accordance with this Section, all other provisions of this Agreement are to remain in effect as written, except that this entire Agreement will be unenforceable if modifying or disregarding the unenforceable provision affects the economic and legal substance of the transactions contemplated by this Agreement in a manner materially adverse to either Party.
- All notices, requests, claims and other communications between the Parties described in or otherwise regarding this Agreement must be in writing and be given or made (and will be effective on receipt) by delivery in person, by nationally recognised overnight courier service (with signature required and all fees prepaid), by facsimile (with confirmation of transmission), or by registered or certified mail (postage prepaid, return receipt requested) to a Party at its address on the first page or at any other address of which that Party has notified the other Party in accordance with this Section.
- Third-Party Beneficiaries. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
- No Waiver. A Party’s failure to enforce any provisions of or rights deriving from this Agreement does not waive those provisions or rights, or that Party’s right to enforce those provisions or rights. Except to the extent stated otherwise in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at Law or in equity.