1. Parties
1.1 In these terms:
(a) the term “Supplier” refers to Prop Lab Software Development LLC, a limited liability company incorporated in the in the Emirate of Dubai with commercial licence number 668959 and with its registered office at whose registered office is at [REGISTERED OFFICE ADDRESS], United Arab Emirates; and
(b) the term, “Customer” (or similar) are references to the party named as Customer in the contact form attached hereto, each a party and together the parties. These terms of use form a legally binding agreement between the parties with effect from the date set out in the attached contract form.
2. Interpretation
2.1 The definitions and rules of interpretation in this clause apply in this agreement.
Business Day: a day other than a Friday/Saturday or public holiday when banks in in the UAE are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information.
Data Protection Legislation: means any legislation relating to the collection, use, sharing, transfer, retention, security, storage and protection of personal data and data privacy and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Dispute: has the meaning set out in clause 24.1.
Initial Subscription Term: the initial 12-month term of this agreement from the date hereof.
Normal Business Hours: 8.00 am to 6.00 pm local UAE time, each Business Day.
Personal Data means any personally identifiable information and data pertaining to a natural person who can be identified from that data or from other information in possession or likely to be in possession of the relevant party.
Renewal Period: the period described in clause 12.1.
Service Fees: means the service fees set out in the contract form attached hereto.
Services: means the services to be provided by the Supplier pursuant to this agreement.
Software: the software applications provided by the Supplier as part of the Services.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Subscription Term: has the meaning set out in clause 12.1.
Virus: anything 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.
Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
2.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
2.3 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.
2.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.
2.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.7 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.
2.8 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.
2.9 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.
3. Services
3.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
3.2 The Supplier shall provide the Services with reasonable skill and care and in compliance with applicable laws and shall use reasonable commercial efforts to:
(a) to make the Services available 24 hours a day, seven days a week except for any maintenance which is required in relation to such information technology systems;
(b) ensure that any such maintenance as is required is carried out at such times and in such manner as to minimise the disruption to the operation of the Service;
(c) ensure that its information technology systems are free from Vulnerabilities of which the Supplier is aware and which it can take reasonable and commercial precautions to mitigate against; and
(d) ensure that the Services and relevant data is hosted on servers and hosting equipment as is provided by reputable cloud service providers who operate in accordance with good industry
standards relevant to the providers of such services.
3.3 The undertaking at clause 3.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 3.2.
3.4 The Supplier:
(a) is not responsible and has no liability to the Customer for:
(i) the information management, technology and communications systems used by the Customer; and
(ii) for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities, and
(b) does not warrant that:
(i) the Customer’s use of the Services will be uninterrupted or error-free;
(ii) the Customer’s use of the Services will be free from Vulnerabilities of which it is not aware and which it can take reasonable and commercial precautions to mitigate against; and
(iii) the Customer’s use of the Services will comply with laws and regulations which are applicable to the Customer
3.5 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
3.6 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
3.7 The Supplier is not and shall not represent itself as an agent of the Customer for any purpose, nor pledge the Customer’s credit or give any condition or warranty or make any representation on the Customer’s behalf or commit the Customer to any contracts or commitments.
4. Customer's obligations
4.1 The Customer shall:
(a) apply for and register a Customer account and promptly provide such information and documents as the Supplier may request in relation to the opening of such account;
(b) create and keep confidential a password in relation to such account and immediately notify the Supplier if such password is lost or stolen or there is unauthorised access to the Customer’s account;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) without affecting its other obligations under this agreement, comply with all applicable contractual obligations, laws and regulations with respect to its activities under this agreement;
(e) ensure that its relevant personnel are properly qualified and experienced to use the Services;
(f) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to use the Service and to perform their obligations under this agreement;
(g) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time, and with good industry standards and with applicable law;
(h) provide the Supplier within a timely manner:
(i) all necessary co-operation and as reasonably required by the Supplier in relation to this agreement; and
(ii) all necessary information as may be required by the Supplier and ensure that it is accurate and complete in all material respects in order to provide the Services and to ensure compliance with the terms of this agreement; and
(i) do all such things and perform such acts as may reasonably be required and are commercially reasonable for the purpose of enabling the Supplier to provide the Services.
4.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that
(a) is unlawful, harmful, threatening, defamatory, obscene,
infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
4.3 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties other than pursuant to this agreement; or
(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party other than pursuant to this agreement, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services; or
(f) introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
4.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier.
5. Charges and Payments
5.1 In consideration for the provision of the Services by the Supplier to the Customer, the Customer shall pay to the Supplier the Service Fees on a monthly basis to be paid in US dollars in cash and in arrears on the first Business Day of the next calendar month or as otherwise agreed in the contract form attached hereto.
5.2 The fees payable by the Customer to the Supplier shall be exclusive of all taxes including value added tax (VAT) applicable under any relevant laws. The Customer shall be liable to pay all other taxes, duties, levies, surcharge, imports and other similar taxes and duties including applicable income, corporate, work contract taxes, service tax payment on account of the payments received by the Supplier from the Customer for the Services. If applicable, Supplier shall, as soon as reasonably practicable, provide Customer with details of its VAT registration number and other information or documents in connection with the VAT reporting requirements in relation to the Services.
5.3 All amounts due under this agreement shall be paid by the Customer to the Supplier in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.4 The Supplier shall be entitled to increase the Service Fees before the start of each Renewal Period upon 90 days’ prior notice to the Customer before the start of a Renewal Period and if the Customer does not agree with such increase, the Customer may terminate the agreement at the end of the current term upon 60 day’s prior notice to the Supplier before the start of the Renewal Period
6. Proprietary rights
6.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
6.2 The Supplier confirms to the Customer that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
6.3 Subject to the terms of this agreement, the Supplier hereby grants to the Customer a limited, non-exclusive, nontransferable license (without the right to sublicense) to use the Services in connection with the Units for the purposes of, on and subject to the terms and conditions set out in this agreement.
6.4 The rights provided by the Supplier to the Customer under clause 6.3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
7. Protection and processing of personal data
7.1 It is contemplated that the Supplier and the Customer shall obtain, process and transfer personal data relating to employees, contractors, suppliers and customers of either party and residents of the units.
7.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.3 Without prejudice to the generality of clause 7.1, each party shall, in relation to any personal data processed in connection with the performance by such party of its obligations under this agreement including without limitation the personal data referred to in clause 7.1
(a) ensure that it has in place appropriate technical and organisational measures, 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).
(b) with regard to personal data transferred to it by or processed by it on behalf of the other party process that personal data only on the documented written instructions of the other party unless the party is required by applicable laws to process personal data (Applicable Laws). Where a party is relying on Applicable Laws as the basis for processing personal data, such party shall promptly notify the other party of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the party from so notifying the other party;
(c) not transfer any such personal data outside of its jurisdiction unless the following conditions are fulfilled:
(i) there are in place appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(d) assist the other party, in responding to any relevant 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;
(e) notify the other party without undue delay on becoming aware of a personal data breach in relation to personal data processed on behalf of the other party;
(f) at the written direction of the other party, delete or return personal data transferred from or processed on behalf of the other party and copies thereof to the other party on termination of the agreement unless required by Applicable Law to store the personal data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 7 and immediately inform the other party if, in the reasonable opinion of the other party, an instruction infringes the Data Protection Legislation
7.4 Either party may, at any time on not less than 30 days’ notice, revise this clause 7 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
7.5 Without prejudice to the preceding provisions of this clause 7, a Party shall provide to the other Party on request a copy of all personal data held by it pursuant to this agreement, in the format and on the media reasonably specified by the requesting Party, and shall promptly inform the requesting Party if any such data is lost or destroyed or becomes damaged, corrupted, or unusable. The other Party will restore such data at its own expense.
8. Anti-bribery and conflicts of interest
8.1 The Customer shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption (Relevant Requirements);
(b) have and shall maintain in place throughout the term of this agreement its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
(c) promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by such Party in connection with the performance of this agreement;
(d) immediately notify the Supplier (in writing) if a public official becomes an officer or employee of the Customer and/or acquires a direct or indirect interest in the Customer (and the Customer warrants that it has no foreign public officials as officers or employees and/or direct or indirect owners at the date of this agreement).
8.2 The Customer represents, warrants and undertakes that:
(a) after making due and careful enquiry that neither the Customer nor its direct or indirect shareholders, directors or officers has any business, professional, personal, or other interest, including, but not limited to, engagements or positions with third parties including but not limited to governmental bodies which are involved in the regulation of the Products or potential customers of the Products or other customers of Supplier, that would conflict in any manner or degree with the performance of the Customer’s obligations under this agreement.
(b) if any such actual or potential conflict of interest arises under this agreement, the Customer shall immediately inform Supplier in writing of such conflict.
8.3 If, in the reasonable judgment of Supplier, such conflict poses a material conflict to and with the performance of Customer’s obligations under this Agreement, then Supplier may terminate the agreement immediately upon written notice to the Customer and such termination of the Agreement shall be effective upon the receipt of such notice by Contractor.
9. Warranties
9.1 Each party represents, warrants and undertakes that:
(a) it has full capacity and authority and all necessary consents to enter into and to perform this agreement and to grant the rights and licences referred to in this agreement and that this agreement is executed by its duly authorised representative and represents a binding commitment on it; and
(b) without affecting its other obligations under this agreement, it shall comply with all applicable law in the performance of its obligations under this agreement.
10. Indemnity
10.1 The Supplier shall defend, indemnify and hold harmless the Customer 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 any claim that the Services breach the intellectual property rights of any third party.
10.2 The Customer shall defend, indemnify and hold harmless the Supplier 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 the Customer’s use of the Services.
10.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer 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 30 Business Days’ notice to the Customer.
10.4 In no event shall the Supplier, its employees, agents and subcontractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority
10.5 The foregoing clause 10 states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and. liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11. Limitation of liability
11.1 Except as expressly and specifically provided in this agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’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 are provided to the Customer on an “as is” basis.
11.2 Nothing in this agreement excludes the liability of the Supplier:
(a) For death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.3 Subject to clause 11.1 and clause 11.2:
(a) the Supplier 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) the Supplier’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 to any party or third party shall be limited to the total fees paid by the Customer to the Supplier during the 3 months immediately preceding the date on which the claim arose[.; and
(c) other than in respect of liability to pay fees pursuant to clause 5, the Customer’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 to any party or third party shall be limited to the total fees paid by the Customer to the Supplier during the 6 months immediately preceding the date on which the claim arose.]
12. Term and termination
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the date hereof and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of this agreement, and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (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) the other 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) the other 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;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2(d) to clause 12.2(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.3 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
(b) each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
(c) each party shall destroy or otherwise dispose of any of the Confidential Information of the other party and in its possession save for any Confidential Information held on its backup and archiving systems and for compliance purposes; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
3. Services
13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 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.
13.3 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.
13.4 A 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 and is given in accordance with this clause 13.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
13.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
13.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
13.7 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
13.8 The above provisions of this clause 13 shall survive termination of this agreement, however arising.
14. Force majeure
14.1 Neither party shall in any circumstances 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 results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Reseller or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Suppliers or Subcontractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or nonperformance continues for three months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party. For the avoidance of doubt, as of the date of the agreement, the current COVID-19 pandemic should not prevent the Parties from performing their respective obligations under this Agreement. Notwithstanding the foregoing, should the circumstances known as of the date of this Agreement change, the parties shall be entitled to rely on the provisions of this clause14.1 with regard to the COVID-19 pandemic, in the event the new circumstances prevent, hinder or delay either party from performing its obligations.
15. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Waiver
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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17. 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.
18. Severance
18.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that 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 deemed deleted under clause 18.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire agreement
19.1 This agreement and the terms of use and privacy policy of the Customer which are incorporated by reference herein 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.
19.2 In the event of any conflict between the provisions of this agreement and the terms of use and privacy policy of the Customer, the provisions of this agreement shall prevail.
19.3 Each party acknowledges that in entering into this agreement 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 this agreement.
19.4 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
19.5 Nothing in this clause shall limit or exclude any liability for fraud
20. Assignment
20.1 Each Party shall not, without the prior written consent of the other Party, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
21. No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22. Third party rights
This agreement does not confer any rights on any person or
party (other than the parties to this agreement and, where
applicable, their successors and permitted assigns).
23. Notices
23.1 Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid firstclass post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as may have been notified by that party for such purpose as set out in this agreement.
23.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. An email shall be deemed to have been received at the time of transmission (as shown by the timed delivery receipt shown on the system of the sender).
24. Governing law
24.1 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) (Dispute) shall be governed by and construed in accordance with the laws of the Dubai International Financial Centre.
24.2 The parties irrevocably agree that the courts of the Dubai International Financial Centre have exclusive jurisdiction to settle any Disputes or claims arising out of or in connection with this agreement.