Terms of Service
Please read these Terms of Service carefully before any Use of the Products. Your Use constitutes an unconditional agreement to be bound by these Terms of Service. IF YOU DO NOT ACCEPT THE TERMS OF SERVICE YOU ARE PROHIBITED FROM USING THE PRODUCTS.
1.1 The following definitions and rules of interpretation apply in this agreement.
Eyekandy Player: the Eyekandy Player is comprised of:
Point & Place® AR Player
AR Product Models: augmented reality product models (including, but not limited to, printers, laptops and televisions).
AR Production Modelling: the production process of AR Product Models.
Business: the business of the Customer in the Channels.
Client is the Brand and/or Retailer
Channels: means Retailers of products products in a given Territory:
a) with an online shop www.URL domain directly selling such products to the general public but which for the avoidance of doubt excludes:
i. any www/domain which does not sell such products directly to the general public;
ii. product categories or market verticals outside such products;
b) that have physical store locations.
Confidential Information: information of commercial value, in whatever form or medium, disclosed by either party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing and, for clarity, including (in the case of the Supplier’s information) information relating to the Application, the Supplier Software or any of its constituent parts, the Source Code relating to the Supplier Software or any such parts.
Contract Year: any 12-month period ending on any anniversary of the Commencement Date.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and controls, controlled and the expression change of control shall be construed accordingly.
Current Player: the Player and any New Releases and any New Versions
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); 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.
Defect: an error in the Current Application that causes it to fail to operate substantially in accordance with the relevant Documents.
Dispute Resolution Procedure: the procedure for dealing with disputes under this agreement as set out in clause 32.
Documents: the operating manuals, user instruction manuals, technical literature and all other related materials (including the Technical Specification) in human-readable or machine-readable forms supplied by the Supplier as specified in Part 2 of Schedule 1.
End-User: an individual user of a Desktop or Mobile Device.
Event of Insolvency: means if:
a) a party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
b) a party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
c) a party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
d) a party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
Initial Term: the period of one Contract Year from the Commencement Date.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related 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, 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 that subsistor will subsist now or in the future in any part of the world.
Licence: the licence granted under clause 2.
Licensed Rights: the right to syndicate the Licensed Player, the Logo, the Name and the Trademark.
Licensed Users: anyone who triggers the Player
Mandatory Policies: the Supplier's Social & Environmental Responsibility Policy (details of which can be accessed at https://eyekandy.com/about-us/ser-policy) as amended by notification to the Customer from time to time.
Mobile Device: the mobile phones, smartphones, tablets, PDAs, computers and other equipment on which the Application will operate.
Name: Point and Place®.
New Release: a new release of all or any part of the Supported Software suitable for use in the Player in which previously identified faults have been remedied or to which any modification, enhancement, revision or update has been made, or to which a further function or functions have been added.
New Version: a new version of the Player released by the Supplier after the Acceptance Date which provides additional o rim proved functionality or performance.
Normal Working Hours: the hours 9 am to 5 pm GMT, Monday to Friday, except Bank Holidays in England and Wales.
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Current Player ,or with which the Supplier Software is compiled or to which it is linked.
Operating System: such system as is compatible with iPhone 6s and iPad 5th Gen and above, running iOS11 and higher.
Personal Data: data subject to protection under Data Protection Legislation in any jurisdiction.
Player: the Supplier Standard Software, the Supplier Software (except the Open-Source Software) and any New Releases and any New Versions
Services: the services to be provided by the Supplier under this agreement detailed in clauses 4 and 12 below.
Source Code: the source code of the software to which it relates, in the language in which the software was written, together with all related flow charts and technical documents, all of a level sufficient to enable the Customer's development personnel to understand, develop and maintain that software.
Supplier Software: the Supplier Standard Software, the Open-Source Software and the Tools.
Technical Specification: the specification of the Player as detailed in the Documents.
Term: the Initial Term (and any extension thereof).
Territory: Subject to negotiation.
Tools: any tools and know-how developed, and methods invented, by the Supplier in the course of or as a result of carrying out its obligations pursuant to this agreement, whether or not developed or invented specifically or used exclusively to carry out such obligations.
Tax: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.
Virus: anything or device (including any software, code, file or programme) which may:
(a) 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;
(b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.1 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.3 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.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.6 Except where a contrary intention appears, a reference to a clause, Schedule or annex is a reference to a clause of, or Schedule or annex to, this agreement.
1.7 Clause and Schedule headings do not affect the interpretation of this agreement.
1.8 Writing or written includes faxes but not any other form of electronic communication, except where expressly provided to the contrary.
1.9 The Schedules to this agreement, together with any documents referred to in them, form an integral part of this agreement and any reference to this agreement means this agreement together with the Schedules and all documents referred to in them, and such amendments in writing as may subsequently be agreed between the parties.
1.10 If any conflict arises between the terms and conditions of this agreement and any provision of any Schedule, the terms, and conditions of the schedule shall prevail.
2.1 The Supplier grants a non-exclusive licence to use the Player and shall supply the Player to the Customer in accordance with the terms of the Licence Agreement and these terms.
2.2 These Terms of Service and the Licence Agreement together form the agreement between the Customer and the Supplier.
3.1 The Customer acquires no rights in or to the Licensed Rights other than those expressly granted by this agreement.
3.2 The Customer shall do, and execute or arrange for the doing and executing of, each necessary act, document and thing that the Supplier may consider necessary or desirable to perfect the right, title and interest of the Supplier in and to the Intellectual Property Rights in the Licensed Rights.
3.3 The Customer shall use reasonable endeavours to prevent any infringement of the Intellectual Property Rights in the Licensed Rights and shall promptly report to the Supplier any such infringement that comes to its attention. In particular, the Customer shall:
3.4 ensure that the terms and conditions of use of any Mobile or desktop Device do not conflict with any of the terms of ownership detailed in this clause 3.
4. CUSTOMER'S OBLIGATIONS
4.1 The Customer shall not, without the Supplier's prior written approval, allow any person other than a representative of the Supplier to modify, repair or maintain any part of the Current Player.
4.2 The Customer shall co-operate with the Supplier in any manner reasonably required by the Supplier in order to carry out the Services, including provision of information and data, making available suitably qualified employees and contractors of the Customer and shall, subject to the Supplier's compliance with the Customer's normal security requirements:
4.2.1 provide access to the Customer's systems for the purpose of carrying out diagnostics and correction of Defects, provided that the Customer may choose to have direct or remote access and, if remote, the Customer must comply with any additional requirements for security and encryption techniques or software which the Supplier may from time to time specify;
4.3 The Customer shall not during the Term of this agreement, and for a period of 24 months after termination, develop any software and/or any application relating to AR Product Models which is in any way in competition with the Licensed Software.
5. CONFIDENTIALITY AND PUBLICITY
5.1 Each party undertakes not to use the Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (Permitted Purposes).
5.2 In relation to the Customer's Confidential Information:
5.2.1 the Supplier shall treat as confidential all Confidential Information of the Customer supplied under this agreement. The Supplier shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. The Supplier shall ensure that its employees are aware of, and comply with, this clause 5; and
5.2.2 the Supplier may provide any subcontractor authorised under clause 11 with such of the Customer’s Confidential Information as it needs to know for the Permitted Purposes, provided that such sub-contractor has first entered into a written obligation of confidentiality owed to the Supplier in terms similar to this clause and which the Supplier shall ensure is adhered to.
5.2.1 (which the Supplier shall ensure is adhered to).
5.3 In relation to the Supplier's Confidential Information:
5.3.1 the Customer shall treat as confidential all Confidential Information of the Supplier contained or embodied in the Current Application or Documents, or otherwise supplied to the Customer during the performance of this agreement;
5.3.2 the Customer shall not, without the prior written consent of the Supplier, divulge any part of the Supplier's Confidential Information to any person other than:
(a) the Customer's Representative;
(b) other employees of the Customer who need to know it for the Permitted Purposes; and
5.4 This clause 5 shall remain in full force and effect, despite any termination of the Licence or this agreement.
6. DATA PROTECTION
6.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
6.2 The parties acknowledge that:
6.2.1 if the Supplier processes any personal data (as defined in the Data Protection Legislation, Personal Data) on the Customer's behalf when performing its obligations under this agreement, the Customer is the data controller and the Supplier 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); and
6.2.2 the Personal Data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and the Supplier's other obligations under this agreement;
6.3 Without prejudice to the generality of clause 6.1, 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 this agreement so that the Supplier may lawfully use, process and transfer the Personal Data in accordance with this agreement on the Customer's behalf;
6.4 Without prejudice to the generality of clause 6.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
6.4.1 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
6.4.2 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);
6.4.3 not transfer any Personal Data outside of the EEA unless the following conditions are fulfilled:
(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
6.4.4 assist the Customer, at the Customer'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;
6.4.5 notify the Customer (Customer to provide a point of contact) without undue delay on becoming aware of a Personal Data breach;
6.4.6 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
6.4.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 6.
6.5 In the event that the Supplier wishes to appoint a third-party processor of Personal Data under this agreement, such third-party processor shall be subject to the prior approval of the Customer (such approval not to be unreasonably withheld or delayed). The Supplier confirms that it shall enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.
6.6 Except as expressly provided otherwise, this agreement does not transfer ownership of or create any licences (implied or otherwise) in, any Intellectual Property Rights in any data.
7. EXPORT AND COMPLIANCE WITH POLICIES
7.1 Neither party shall in any circumstances export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
7.2 Each party undertakes:
7.2.1 contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
7.2.2 if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
7.3 In performing its obligations under this agreement the Customer shall comply with the Mandatory Policies.
8.1 The Supplier warrants and represents that:
8.1.1 the Player and Documents are proprietary to the Supplier and that it has the right to license all Intellectual Property Rights in and to the Player and Documents to the Customer, and to provide the Support Services to the Customer;
8.1.2 use of the Player does not infringe the Intellectual Property Rights of any third party;
8.1.3 the Player at the Commencement Date, and for six months after that date, will perform materially in accordance with the Technical Specification;
8.1.4 it will perform the Services in a reliable and professional manner, in conformity with Good Industry Practice, by a sufficient number of competent personnel with appropriate skills, qualifications and experience and has, and will at all times have, the ability and capacity to meet such requirements; and
8.1.5 it is in compliance with, and will perform the Services in compliance with, all applicable law and regulations.
8.2 The sole remedies for breach of the warranties in clause 8.1.1 and clause 8.1.2 are set out in clause 9.
8.3 The sole remedy for breach of the warranty under clause 8.1.3 shall be correction of Defects by the Supplier within a reasonable time from notification by the Customer of the Defect that constitutes such breach.
8.4 The warranties set out in clause 8.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this agreement. Without limitation, the Supplier specifically denies any implied or express representation that the Supplier Software will be fit:
8.4.1 to operate in conjunction with any hardware items or software products other than with those that are identified in the Documents as being compatible with the Supplier Software; or
8.4.2 to operate uninterrupted or error-free.
8.5 The Supplier does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defect that does not materially affect the Customer's operations using the Supported Software will be corrected before the issue of the next New Release.
8.6 Any unauthorised modifications, use or improper installation of the Current Player by, or on behalf of, the Customer shall render all the Supplier's warranties and obligations under this agreement null and void.
8.7 The Customer:
8.7.1 warrants to the Supplier that it will at all times comply with all applicable laws and regulations with respect to its activities under this agreement and any part of the Supplier Software;
8.7.2 shall not access, store, distribute or transmit or cause, suffer or allow to be accessed, stored, distributed or transmitted any Virus;
8.7.3 shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier arising out of any non- compliance by the Customer with clause 8.7.1, clause 8.7.2 and clause 8.7.3.
8.8 Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform this agreement and that those signing this agreement are duly authorised to bind the party for whom they sign.
9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
9.1 The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with use of the Licensed Software or Documents, provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Customer:
9.1.1 as soon as reasonably practicable, gives written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
9.1.2 does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
9.1.3 gives the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
9.1.4 subject to the Supplier providing security to the Customer, to the Customer's reasonable satisfaction, against any claim, liability, costs, expenses, damages or losses that may be incurred, takes such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
9.2 Without prejudice to clause 6.6, the Supplier shall have no liability for any claim of infringement of Intellectual Property Rights:
9.2.2 based on use of any release or version of any part of the Player other than the latest release or version supplied or made available by the Supplier, if such claim could have been avoided by the use of such supplied release or version.
9.3 If use of the Current Player or receipt of the benefit of the Support Services becomes, or in the opinion of qualified legal counsel is likely to become, the subject of any such claim, the Supplier may:
9.3.1 replace all or part of the Current Player with functionally equivalent software or documents without any charge to the Customer;
9.3.2 modify the Current Player as necessary to avoid such claim, provided that the Current Application (as modified) functions in substantially the same way as the Current Player before modification; and
9.3.3 procure for the Customer a license from the relevant claimant to continue using the Current Player.
9.4 This agreement and the Licence will be terminated if:
9.4.1 use of the Current Application is determined in a court of law to be infringing;
9.4.2 the Supplier is advised by its legal representatives that use or possession by the Customer of the Current Application and/or the Documents in accordance with this agreement is likely to constitute infringement of a third party's rights; or
9.4.3 if an injunction or similar order is granted in connection with a claim of the types referred to in clause 9.1 which prevents or restricts the use or possession by the Customer of the Current Application and/or the Documents in accordance with this agreement, and the Supplier is unable, after best efforts, to procure for the Customer the right to continue using the Current Application or to provide the Customer with functionally equivalent non-infringing software.
9.5 Notwithstanding any other provision in this agreement, clause 9.1 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession, use, development, modification or maintenance of any Open-Source Software or through the breach of any licence relating to any Open-Source Software by the Customer.
9.6 If a payment due from the Supplier under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Customer shall be entitled to receive from the Supplier such amounts as shall ensure that the net receipt, after tax, to the Customer in respect of the payment is the same as it would have been were the payment not subject to tax.
9.7 Nothing in this clause shall restrict or limit the Customer's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
10. LIMITATION OF LIABILITY
10.1 Neither party excludes or limits liability to the other party for:
10.1.1 fraud or fraudulent misrepresentation;
10.1.2 death or personal injury caused by negligence;
10.1.3 a breach of any terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
10.1.4 any matter for which it would be unlawful for the parties to exclude liability.
10.2 Subject to clause 10.1, the Supplier shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
10.2.1 any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or good will;
10.2.2 any loss or corruption (whether direct or indirect) of data or information;
10.2.3 loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
10.2.4 any loss or liability (whether direct or indirect) under or in relation to any other contract.
10.3 Clause 10.2 shall not prevent claims for direct financial loss that are not excluded under any of the categories set out in clause 10.2.1 to clause 10.2.4.
10.4 Subject to clause 10.1, the Supplier’s maximum aggregate liability to the Customer under or in connection with these Terms of Service, whether in contract, tort (including negligence) or otherwise, shall not exceed the total amount of the sums actually paid by or on behalf of the Customer in the 12 month period prior to the date upon which the liability arose.
10.5 Nothing in this clause 10 shall limit the Customer’s payment obligations under these Terms of Service.
11. ASSIGNMENT AND SUBCONTRACTING
11.1 This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
11.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
11.3 Notwithstanding clause 5, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure under this clause 11.3 shall be made until notice of the identity of the proposed assignee has been given to the other party.
The Term of this agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 13, for the Initial Term and thereafter provided always that either party shall have the right to terminate this agreement at the date of expiry of the Initial Term (or on any anniversary of the Initial Term thereafter) on the provision of a minimum of 90 days’ prior written notice to the other party, such notice to expire on the expiry of the Initial Term (or the relevant anniversary thereof).
13.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement and/or the Support Services with immediate effect by giving written notice to the other party if:
13.1.1 the other party suffers an Event of Insolvency; or
13.1.2 any warranty given by the other party in clause 17 is found to be untrue or misleading; or
13.1.3 the other party commits a material breach of this agreement which is irremediable (or, if such material breach is capable of remedy, is not remedied within 28 days of notice of such breach having been given to the other party).
13.2 Either party may terminate this agreement in accordance with clause 21.
13.3 The Supplier may terminate this agreement and the Licence immediately by written notice to the Customer if:
13.4 This agreement shall automatically terminate on termination or expiry of the Licence, but expiry or any termination of this agreement (however caused) shall have no effect on the Licence.
13.5 Other than as set out in this agreement, neither party shall have any further obligation to the other under this agreement after its termination.
13.7 Any provision of this agreement which expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
13.8 Termination or expiry of this agreement 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 agreement which existed at or before the date of termination or expiry.
13.9 Notwithstanding its obligations in this clause 13, if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party's Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15. RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16. ENTIRE AGREEMENT
16.1 This agreement 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.
16.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
18.1 If any provision or part-provision of this agreement 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 this agreement.
18.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. THIRD-PARTY RIGHTS
19.1 A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
19.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement is not subject to the consent of any person that is not a party to this agreement.
20. NO PARTNERSHIP OR AGENCY
20.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
20.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
21. FORCE MAJEURE
21.1 Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 weeks the party not affected may terminate this agreement by giving 28 days' written notice to the affected party.
21.2 If termination occurs under clause 21.1, all sums paid to the Supplier by the Customer under this agreement shall be refunded to the Customer, except that the Supplier shall be entitled to payment on a quantum merit basis for all work done before termination, provided that the Supplier takes all reasonable steps to mitigate the amount due.
22.1 Any notice or other communication required to be given under this agreement, shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery or by commercial courier, to each party required to receive the notice or communication as set out in Schedule 2 or as otherwise specified by the relevant party by notice in writing to each other party.
22.2 Any notice shall be deemed to have been duly received:
22.2.1 if delivered personally, when left at the address and for the contact referred to in this clause;
22.2.2 if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; or
22.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
22.3 A notice required to be given under this agreement shall not be validly given if sent by e-mail.
22.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
23. DISPUTE RESOLUTION
23.1 Any dispute that may arise between the parties concerning this agreement shall be determined as provided in this clause 23.
23.2 For the purpose of this clause 23, a dispute shall be deemed to have arisen when one party serves on the other a notice in writing stating the nature of the dispute.
23.3 Unless this agreement has already been terminated by the date of the notice of dispute, the Supplier shall, in every case, continue with the Work with all due diligence regardless of the nature of the dispute and the Customer shall continue to make payments (excluding any disputed sums) in accordance with Schedule2.
23.4 After service of the notice of dispute, the following procedure shall be followed by the parties (all periods specified in this clause 23.4 shall be extendable by mutual agreement):
23.4.1 within seven days, the Supplier’s Chief Executive Officer and the Customer’s Chief Executive Officer shall meet to attempt to settle the dispute; and
23.4.2 if no settlement results from the meeting specified in clause 23.4.1, for the following 28 days the parties shall attempt to settle the dispute by mediation by an independent mediator, with costs to be shared equally between the parties.
23.5 If no settlement is reached under clause 23.4, the dispute shall be determined by the High Court of England and Wales and the parties submit to the exclusive jurisdiction of that court for those purposes.
24. GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of it.
SCHEDULE 1 SUPPLIER SOFTWARE
Part 1 Supplier Standard Software
Unity 3D 2017 and any subsequent versions Apple iOS SDK
XCode 9 and any subsequent versions
Part 2 Supported Software
Unity 3D 2017 and any subsequent versions Apple iOS SDK
XCode 9 and any subsequent versions
Part 3 Address for Notices
1 Mark Square, London, EC2A 4EG
Part 4 Eyekandy Privacy Agreement;