eFacility



Master Subscription Agreement

THIS MASTER SUBSCRIPTION AGREEMENT ("AGREEMENT") GOVERNS YOUR 14-DAY FREE TRIAL OF THE SERVICES.

IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.

IF YOU USE OUR FREE SERVICES, THIS AGREEMENT WILL GOVERN YOUR ONGOING USE OF THOSE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN OFFER LETTER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are OTD's direct competitor, except with OTD's prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement is effective between You and OTD as of the date You accepted it.

This Agreement was last updated on May 15, 2012.

Table of Contents

  1. Definitions
  2. 14-Day Free Trial
  3. Purchased Services
  4. Free Services
  5. Use of the Services
  6. Fees and Payment for Purchased Services
  7. Proprietary Rights
  8. Confidentiality
  9. Warranties and Disclaimers
  10. Mutual Indemnification
  11. Limitation of Liability
  12. Term and Termination
  13. Governing Law
  14. Force Majeure
  15. General Provisions

1. DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"CWP" means Classification Work Package which typically contains a set of laboratory analysis data, a classification, supporting documentation and is compiled by a User of Purchased Services.

"Effective Date" shall mean the date when OTD commenced the provision of the Purchased Services.

"Free Services" refers to the Services that give You read-only type access to one or more CWP that You have been invited to view.

"Invitation" is an email from a User of the Purchased Services that invites You to view and comment on a particular CWP.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Offer Letter" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and OTD from time to time. Offer Letters shall be deemed incorporated herein by reference.

"OTD" means One Touch Data Ltd.

"Purchased Services" means Services that You or Your Affiliates purchase under an Offer Letter, as distinguished from those provided pursuant to a 14-day free trial or the Free Services.

"Services" means the online, web-based applications and platform provided by OTD via either the Website or and/or other designated websites as described in the User Guide, that are ordered by You as part of a 14-day free trial or under an Offer Letter or are accessed by You following an Invitation to use the Free Services.

"this Agreement" shall consist of:

i) The terms and conditions contained herein and any variations thereof made by OTD from time to time as indicated on the Website.

ii) The Offer Letter.

"User Guide" means the online user guide for the Services, accessible via the Website, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide during the 14-day free trial described in Section 2 (14-Day Free Trial) below.

"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by OTD. Users may include but are not limited to Your employees and permanent contractors; or other third parties where authorised by OTD.

"Website" refers to either www.hazwasteoneline.com or www.hazwasteoneline.it used to access the Services and supporting documents.

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"Your Data" means all electronic data or information submitted by You to the Services.

2. 14-DAY FREE TRIAL

OTD will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the fourteenth day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You.

ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR 14-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE 14-DAY TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 14-DAY FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION OR FROM PROFESSIONAL EDITION TO STANDARD EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE 14-DAY TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.

NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE 14-DAY FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY.

Please review the User Guide during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.

3. PURCHASED SERVICES

3.1. Provision of Purchased Services. OTD shall make the Purchased Services available to You pursuant to this Agreement and the relevant Offer Letter during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by OTD regarding future functionality or features.

3.2. User Subscriptions. Unless otherwise specified in the applicable Offer Letter, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

4. FREE SERVICES

4.1. Provision of Free Services. OTD shall make the Free Services available to You pursuant to this Agreement and Your receipt of an Invitation from a User of the Purchased Services. You agree that Your use hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by OTD regarding future functionality or features.

4.2. Free User Subscriptions. The Free Services are available at no charge following receipt of an Invitation and subsequent registration of the User. Free User Subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

4.3 Classification Work Package (CWP). An Invitation gives You time-limited access to a CWP. A CWP contains a set of laboratory analysis data, the classification and supporting documentation and is put together by the Owner of the CWP; the Owner is the User of the Purchased Services who sent the Invitation to you.

4.4. Messaging Tool. The CWP also contains a message from the Owner to which you can reply using the Messaging Tool. Any messages sent between You and the Owner become part of the CWP.

4.5 Expiration. Access to a particular CWP is limited to 24 hours from the time the Invitation was sent. After this time this CWP will be marked as expired and no further access will be given.

5. USE OF THE SERVICES

5.1 OTD's Responsibilities. OTD shall: (i) provide to You basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which OTD shall give at least 8 hours notice via the Purchased Services and which OTD shall schedule to the extent practicable during the weekend hours from 6:00 pm GMT Friday to 3:00 am GMT Monday, or (b) any unavailability caused by circumstances beyond OTD reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving OTD employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

5.2. Your Responsibilities. You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify OTD promptly of any such unauthorized access or use, (iv) at all times to comply with all access and security procedures provided by OTD, and (v) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

5.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make for support. Any such limitations are specified in the User Guide or in the Offer Letter.

5.4. Cookies. OTD uses session cookies containing encrypted information to allow OTD to uniquely identify You. Each time You log into the Services, a session cookie containing an encrypted, unique identifier that is tied to Your User Subscription is placed on Your computer by Your browser. These session cookies allow OTD to uniquely identify You when you are logged into the Services and to process Your online transactions and requests. Session cookies are required to use the Services.

If You disable Your web browser’s ability to accept cookies, You will not be able to use the Services.

6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1. User Fees. You shall pay all fees specified in all Offer Letters hereunder. Except as otherwise specified herein or in an Offer Letter, (i) fees are quoted and payable in pounds sterling, (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated in the Offer Letter. User subscription fees are based on monthly periods that begin on the subscription Effective Date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

6.2. Invoicing and Payment. You will provide OTD with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to OTD. If You provide credit card information to OTD, You authorize OTD to charge such credit for all Services listed in the Offer Letter for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Offer Letter. If the Offer Letter specifies that payment will be by a method other than a credit card, OTD will invoice You in advance and otherwise in accordance with the relevant Offer Letter. Unless otherwise stated in the Offer Letter, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.

6.3. Overdue Charges. If any charges are not received from You by the due date, then at OTD's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) OTD may condition future subscription renewals and Offer Letters on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for OTD services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized OTD to charge to Your credit card), OTD may, without limiting OTD's other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend OTD's services to You until such amounts are paid in full.

6.5. Payment Disputes. OTD shall not exercise OTD's rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

6.6. Taxes. Unless otherwise stated, OTD'S fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If OTD has the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide OTD with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, OTD are solely responsible for taxes assessable against it based on OTD's income, property and employees.

7. PROPRIETARY RIGHTS

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, OTD reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

7.2. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Offer Letter, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

7.3. Ownership of Your Data. As between OTD and You, You exclusively own all rights, title and interest in and to all of Your Data.

7.4. Suggestions. OTD shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

8. CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; OTD's Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Offer Letters, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

8.3. Protection of Your Data. Without limiting the above, OTD shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. OTD shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9. WARRANTIES AND DISCLAIMERS

9.1. OTD Warranties. OTD warrant that (i) the Services shall perform materially in accordance with the User Guide, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.4 (Termination for Cause) and Section 12.5 (Refund or Payment upon Termination) below.

The Services are provided for indicative purposes only and represent OTD's interpretation of published technical guidance. The Services are not intended to be a substitute for formal classification by the intended Waste Operator or Regulating Authority. None of the Services, documentation, and/or Website are subject to any warranty or condition, express or implied, including, without limitation, any warranty of satisfactory quality, fitness for a particular purpose or use, and non-infringement. OTD does not warrant or guarantee that the provision of any Services, documentation or Website access will be error free or uninterrupted.

You acknowledge that electronic communications, databases and websites are subject to errors and tampering and that, notwithstanding OTD's use of reasonable security precautions, OTD does not guarantee or warrant that such events will not take place.

9.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code.

9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

10. MUTUAL INDEMNIFICATION

10.1. Indemnification by OTD. OTD shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable lawyer's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give OTD written notice of the Claim; (b) give OTD sole control of the defence and settlement of the Claim (provided that OTD may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to OTD all reasonable assistance, at OTD's expense.

10.2. Indemnification by You. You shall defend OTD against any Claim made or brought against OTD by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify OTD for any damages finally awarded against, and for reasonable attorney's fees incurred by, OTD in connection with any such Claim; provided, that OTD (a) promptly give You written notice of the Claim; (b) give You sole control of the defence and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release OTD of all liability); and (c) provide to You all reasonable assistance, at OTD expense.

10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.

11. LIMITATION OF LIABILITY

11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF £250,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. TERM AND TERMINATION

12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 14-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 14-day free trial period.

12.2. Term of Purchased User Subscriptions. User subscriptions purchased by You commence on the start date specified in the applicable Offer Letter and continue for the subscription term specified therein. Except as otherwise specified in the applicable Offer Letter, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless OTD has given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Offer Letter as promotional or one-time.

12.3. Term of Free User Subscriptions. You will retain access to the list of expired CWP for 12 months after the last CWP expired or was removed by the Owner. If You wish to have ongoing access to all the CWP to which You have been invited to view, You will need to purchase a subscription to a suitable Purchased Service.

12.4. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.5. Refund or Payment upon Termination. Upon any termination for cause by You, OTD shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by OTD, You shall pay any unpaid fees covering the remainder of the term of all Offer Letters after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to OTD for the period prior to the effective date of termination.

12.6. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, OTD will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, OTD shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in OTD's systems or otherwise in OTD's possession or under OTD's control.

12.7. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.5 (Refund or Payment upon Termination), 12.6 (Return of Your Data), 13 (Governing Law) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.

13. GOVERNING LAW

13.1. General. This Agreement shall be governed by and construed in accordance with English law and the parties herby submit to the exclusive jurisdiction of the English courts.

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.

14. FORCE MAJEURE

14.1. Force majeure OTD shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of OTD or any other party), failure of a utility service or transport 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 sub-contractors, provided that the Customer is notified of such an event and its expected duration.

15. GENERAL PROVISIONS

15.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

15.2. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

15.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

15.4. Severability. Provisions of this Agreement which either are expressed to survive expiry or termination of this Agreement or from their nature or context it is contemplated that they are to survive such expiry or termination, shall remain in full force and effect notwithstanding such expiry or termination.

15.5. Lawyer Fees. You shall pay on demand all of OTD reasonable lawyer's fees and other costs incurred by OTD to collect any fees or charges due OTD under this Agreement following Your breach of Section 7.2 (Invoicing and Payment).

15.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Offer Letters), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, OTD shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Offer Letters, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Offer Letter, the terms of such exhibit, addendum or Offer Letter shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Offer Letters) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.