SOFTWARE LICENCE AGREEMENT –  GENERAL TERMS & CONDITIONS

1. Definitions

Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 5.
Agreement: these General Terms & Conditions and, if any, the Special Terms.
Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Customer: the person, whether an individual or an entity, purchasing or obtaining a licence, or using the Software or any of its components.
Customer’s Creative Work: any creative work developed by the Customer.
Fees: the licence fees payable by the Customer to the Supplier in accordance with clause 5.
Free Trial: as set out in clause 4 of this General Terms & Conditions.
Free Trial Period: the duration of the Free Trial, as set out on the My Licence page of the Supplier’s website, or as set out in the Special Terms, if any.
General Terms & Conditions: these software licence agreement general terms & conditions plus all the documents annexed to these or otherwise referred to herein.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, industry schemes and sanctions, which are applicable to either the Customer or its end users (but not the Supplier) relating to security of network and information systems and security breach and incident reporting requirements, which may include the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
Licence File: a file created by the Supplier and made available to the Customer for the configuration and use of the Software.
Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.
New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
Open-Source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org).
AtomsRT Source Code Customers: as defined in clause 7.
AtomsRT Source Code Licence: as defined in clause 7.
Supplier: the supplier of the Software, being TOOLCHEFS LIMITED incorporated and registered in England and Wales with company number 09345032 whose registered office is at 86-90 Paul Street, London, EC2A 4NE, United Kingdom.
Site: the premises from which the Customer carries out its business as disclosed to the Supplier, or as stated in the Special Terms, if any.
Software or Tools: AtomsMaya, AtomsHoudini, AtomsUnreal, AtomsClarisse, AtomsGaffer, AtomsKatana, Atoms Python/C++ APIs, Atoms Crowd core libraries, AtomsUnreal libraries, and any other tools, libraries, downloadable plugins or software, licence files, character animation, character models, content and related services listed in Schedule 1 or available on the Supplier’s website or released from time to time, and any Maintenance Release which is downloaded by the Customer during the subsistence of this licence.
Source Code: the source code of the Software, and all technical information and documentation required to enable the Customer to modify and operate it.
Source Code Materials: as defined in clause 7.
Special Terms: for customised orders negotiated with the Supplier, the software licence agreement special terms delivered and accepted by the Customer.

2. Delivery and acceptance

2.1 Customers can buy certain licences directly from the Supplier’s website by ordering the Software from the licence To order online, an account must be created. This will give the Customer access to the My License page of the Supplier’s website. For licences not available to be purchased online, or to purchase a customised licence, the Customer must contact the Supplier.

2.2 For online purchases paid via paddle, a 14-day temporary Licence File will be available on the My Licence page. The full Licence File will be available on the My Licence page after the expiry of the 14-day temporary Licence File. For all other purchases, a temporary Licence File will be made available to the Customer until payment of the Fee is paid in accordance with the terms of clause 3. It may take up to five (5) full Business Days for the temporary Licence File to be activated on the My Licence page. The full Licence File will be available on the My Licence page after payment of the Fee is made in accordance with the terms of clause 5.3. It is the Customer’s responsibility to pay within the time period stipulated in clause 5.3. Any delay in payment by the Customer will not entitle the Customer to an extension of the duration of the licence purchased. All the provisions of this Agreement apply, as set out in clause 2.5, to the use of the Software with a temporary Licence File. Licence Files are not needed to access or use of any of the libraries.

2.3 Supplier’s licences use RLM encryption. It is the Customer’s responsibility to download the Supplier’s licence server to its local network (for Floating licences).

2.4 The Customer will provide a licence key for validation and use of the Software. The Customer must verify that the licence key provided to the Supplier is correct and notify the Supplier of any errors before the expiry of the temporary Licence File (please see clause 2). The Supplier accepts no responsibility for any issues that the Customer may experience in accessing or using the Software if the Customer fails to comply with the provisions of this clause.

2.5 The Customer shall be deemed to have accepted the terms of this Agreement and the Software when the Customer first downloads the Software or any Licence File, regardless of whether it is downloaded as a Free Trial, a Studio licence, an Indie licence, a PLE licence, an Educational licence, a temporary Licence File or a full Licence File (indie or studio), or any other type of licence available at the time of the download.

3. Licence

3.1 In consideration of the Customer’s acceptance of the terms of this Agreement and payment of any applicable Fee to the Supplier and, if any, subject to the terms expressly stated in the Special Terms, the Supplier grants to the Customer a non-exclusive, non-transferrable and limited licence for a term of one (1) month or one (1) quarter or one (1) year or as otherwise agreed with the Supplier, plus any agreed Free Trial Period, commencing on the date the Customer is deemed to have accepted the Software in accordance with clause 5 or (for Customers that pay via PayPal or bank transfer) from the date of the relevant invoice.

3.2 The Customer confirms that, unless otherwise disclosed to the Supplier, it is acting on its own behalf and not for the benefit of any other person, and it acknowledges and agrees that it is its responsibility to read and understand the different Customer categories, types of licences available depending on where the Software can be used and by whom, and the different options of ultimate use of the Software, all of which are more particularly described in Schedule 1. In the event that the Customer is not permitted by the Supplier, or the terms of this Agreement, to directly or indirectly share the Software with a third party, the Customer will be liable for breach of the terms of this Agreement and any breach, actions or omissions of the third party. In the event that the Customer is permitted by the Supplier, or the terms of this Agreement, to directly or indirectly share the Software with a third party, the Customer undertakes to, and agrees that:

(a) inform the third party of the terms of this Agreement;
(b) use all reasonable endeavours to ensure that the third party undertakes to comply with the terms of this Agreement as if they were a party to it;
(c) it will be liable for any breach, actions or omissions of the third party;
(d) if required by the Supplier, procure that the third party enters into an agreement directly with the Supplier in similar terms to those set out in this Agreement;
(e) keeps a written account of each third party to which the Software is made available;
(f) advise the Supplier immediately upon becoming aware of any potential or actual breach by a third party; and
(g) if requested by the Supplier, provides satisfactory evidence of compliance with this clause

3.3 The Customer further acknowledges and agrees that the Supplier offers different licensing options and pricing based on the parameters set out in clause 2 and, as such, the Customer undertakes to provide accurate information to the Supplier.

3.4 Failure to comply with clauses 2 and 3.3 will entitle the Supplier, at its absolute discretion, to suspend or terminate the licence and to demand payment of the Fee that should have been paid, had the Customer complied with those obligations.

3.5 Conditions of the licence:

(a)Use of the Software is restricted to:

(i) use of the Software in object code form and the Source Code will not be made available, unless otherwise specified in the Special Terms, if any.
(ii)use of the Software in the manner specified in this Agreement.
For the purposes of this clause “use of the Software” means loading the Software into temporary memory or permanent storage on the relevant computer or into the Site’s or company’s network, depending on whether the licence is node-locked, floating or cloud.

(b) Use of the Software is restricted to the use or ultimate use disclosed to the Supplier, as described in Schedule 1, or as set out in the Special Terms, if any. Breach of this condition may result in additional Fees being payable.

(c) The Customer shall:

(i) ensure that the Software is only used by those authorised to do so in accordance with the licence purchased;
(ii) ensure that the Software is installed on designated equipment, Site or licenced company only;
(iii) ensure that the Software will not be installed in any machine other than the one disclosed to the Supplier (either directly to the Supplier or by inserting the licence key on My Licence page, or as included on the Special Terms, if any), or shared outside of the Site or the company which are licensed.
(iv) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and provide promptly such record to the Supplier, if requested;
(v) notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;
(vi) have an active licence (Studio or Indie) whenever the Tool, or any of its components, are being used. For the purpose of this clause, a Tool, or any of its components, is deemed to be in use when the Tool, or any of its components, are used to develop and or build a game or an app or any other audio-visual material, and when the Tool, or any of its components, form part of a [live] game or an app or any other audio-visual material. .
(vii) pay, for broadening the scope of the licences granted under this licence to cover any unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 5, from such date to the date of payment..

(d) Except as otherwise expressly permitted under this Agreement, the Customer shall have no right to and will not permit any third party to, directly or indirectly:

(i) Transfer, rent, commercialise, assign, novate or sublicense its license rights to any other person or entity, allow the Software to become the subject of any charge, lien or encumbrance or deal in any other manner with any or all of its rights and obligations under this Agreement;
(ii) Copy, disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Tools or attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Tools;
(iii) Otherwise attempt to circumvent the provisions of this Agreement or discover or misappropriate the source code or architecture of the components of any Tools;
(iv) Use any robot, spider, other automatic device, or manual process to monitor or copy any Tools without our prior written permission;
(v) Export the Tools in violation of any U.N. embargoes, U.S. or other applicable laws and regulations;
(vi) Use or permit the Software to be used to perform services for third parties or integrate it (or part of it) in other third party applications or integrate it (or part of it) into your own software without our express written authorisation or otherwise in a manner not permitted by this Agreement;
(vii) Disclose, provide or otherwise make available trade secrets contained within the Tools in any form to any third party without our prior written consent; or
(viii) The Customer may not use any information provided by the Supplier or obtained by the Customer to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

(e) Use of the Software in Customer’s Creative Work:

(i) The Customer may use the Software, subject to compliance with any specific limitations applicable to the licence purchased, as part of the Customer’s Creative Work for non-revenue projects or commercial projects for a third party.
(ii) If the Software does not form part of the Customer’s Creative Work, it may not be licensed, resold, published or distributed to third parties without the prior written consent of the Supplier.
(iii) Subject to compliance with any specific limitations applicable to the licence purchased, the Customer may develop as Customer’s Creative Work new modules, events, exporters, importers and similar features, including for sale to third parties.
(iv) The Supplier claims no right, title or interest in and to the Customer’s work incorporated into the Customer’s Creative Work, but the Customer agrees to: (i) preserve and display all proprietary notices that the Supplier attaches to the Software; and (ii) distribute any Customer’s Creative Work pursuant to a commercially reasonable end-user licence agreement containing terms and conditions consistent with good commercial practices that restrict use of the Customer’s Creative Work and forbid reverse engineering or re-distribution of the Customer’s Creative Work.

3.6 During the Free Trial Period, in addition to (and notwithstanding) the other terms in this clause 3 the following conditions also apply:

(a) Trials can only be performed within the company of the licensed Customer. The Customer shall not perform or involve other parities (e.g. other studios, related companies, sub-contractors, etc.).
(b) The Software must only be used for internal testing purposes. The Customer shall not use the Software during the Free Trial Period for any commercial use, which shall include, but is not limited to, generating any Customer’s Creative Work for third parties.
(c) The Customer undertakes to notify the Supplier of any use of the Software (including any use for Customer’s Creative Work) other than as permitted under this clause, or the Special Terms if any, and to pay the applicable Fees as notified by the Supplier.

3.7 The following conditions apply to AtomsRT Source Code License, which apply in addition to (and notwithstanding) the other terms in this clause 3:

(a) The Licence Term shall be for a minimum of 3 years.
(b) For the purpose of this Licence only, Source Code Materials means the source code of the AtomsUnreal Plugin, and all technical information and documentation required to enable the Customer to modify, operate or incorporate the AtomsUnreal Plugin into a custom build of Unreal Engine.
(c) AtomsRT Source Code Customers (“AtomsRT Source Code”) might request Source Code Materials to incorporate the AtomsUnreal Plugin into a custom build of Unreal Engine.
(d) The Supplier at their sole discretion, in consideration of the applicable Fee and subject to compliance with the terms of this Agreement, will grant to the AtomsRT Source Code Customer, for the term agreed, a non-exclusive, non-transferable, limited licence to use, access and incorporate the AtomsUnreal Plugin into their custom build of Unreal Engine (“AtomsRT Source Code Licence”).
(e) AtomsRT Source Code Customers undertake to keep the Source Code Materials confidential and not to allow the Source Code Materials to be: a) used for any purpose other than that allowed by the AtomsRT Source Code Tool Licence; b) re-used in-house; or c) shared with any third party.
(f) AtomsRT Source Code Customers agree to indemnify the Supplier for any loss, damage, cost or expense that may be suffered or incurred as a result of any breach by AtomsRT Source Code Customers of the terms of this licence.
(g) Unless expressly agreed in the Special Terms, if any, the Supplier may only use the Software as part of a single commercial project to a third party, as part of a game if the Customer’s Creative Work is displayed inside the game during play and cannot be extracted without use of reverse engineering techniques.
(h) Upon termination of the Licence Term the Customer:

(i) immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software and the Source Code Materials (as defined in Schedule 1) then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
(ii) in the event the that the Licence Term does not extend beyond the minimum term of 3 (three) years, undertakes to share with the Supplier the source code of any solution similar to that of the Supplier’s which is developed at any time after the commencement of the Licence Term, whether directly or indirectly, by the Customer.

3.8 If the Source Code Materials are provided to the Customer under the AtomsRT Source Code License or in the event of a breach, or suspected breach, of the terms of the Agreement, the Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

3.9 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives reasonable written notice to the Customer.

4. Maintenance releases and Support

4.1 Where the Licensed Software includes Maintenance Releases, the Supplier will provide the Customer with all Maintenance Releases.

4.2 Where the Licensed Software includes standard support, the Customer will be entitled to receive service desk and bug fixing support.

4.3 The Supplier may, subject to agreement of the terms and payment of the approved Fee, provide customised premium support.

4.4 Indie, Educational and PLE Licences do not grant access to service desk support. Indie, Educational and PLE Customers should report bugs, make requests and ask questions via the Supplier’s google group: https://groups.google.com/u/2/a/toolchefs.com/g/atoms-crowd. Such communications will be considered by the Supplier but it will not be obliged to provide any fixes.

4.5 Custom features or support at extra cost may be requested by Studios by contacting the Supplier, who will consider the request and provide a proposal on a case by case basis.

5. Fees

5.1 The Customer shall pay to the Supplier the applicable Fees, as these are set out in the Buy page of the Supplier’s website, or on the Pricing page (if Fees are not included on the Buy page), or on the Special Terms, if any. Fees are non-refundable in any circumstances whatsoever.

5.2 All Fees are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible. The Supplier will render a valid tax invoice to the Customer on request. If any payment pursuant to this Agreement constitutes the whole or any part of the consideration for a taxable or deemed taxable supply to recipient, the Customer shall increase that payment by an amount equal to the VAT which is chargeable in respect of the taxable or deemed taxable supply, provided that the recipient shall have delivered a valid VAT invoice in respect of such VAT. Customers in the EU should supply their VAT number.

5.3 Customers may pay online purchases through the online reseller Paddle.com (Paddle), the merchant of record for all online purchases. Paddle handles all customer service inquiries and returns. Customers must contact the Supplier to pay via PayPal or bank transfer, and payment shall be made within 14 (one month licence term) or 30 days (all other licence terms), as stated therein, from receipt of the relevant invoice or payment instructions. Payment through PayPal will carry an extra 5% fee, which will be added to the total amount of the Fee.

5.4 No Fees are payable during the Free Trial Period (if any), provided that the Customer complies with clause 6 of this Agreement.

5.5 Fees are payable monthly, quarterly or annually, as specified on the Buy page, or on the Pricing page (if details are not included on the Buy page), or as otherwise agreed with the Supplier and specified in the Special Terms. Fees are payable in advance without any set off or deduction.

5.6 The Supplier shall be entitled to set off or withhold any amount owed to Customer under this Agreement against any amount payable by the Customer to the Supplier.

5.7 If the Customer fails to make any payment due to the Supplier under this Agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 12 the Customer shall pay charge additional administration costs and interest (both before and after judgment) on the amount unpaid at the rate for the time being that would be applicable if the debt were a qualifying debt under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6. Confidentiality and publicity

6.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

6.2 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.

7. Supplier’s warranties

7.1 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free or that it will meet any Heightened Cybersecurity Requirements.

7.2 The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

7.3 The Customer acknowledges that any Open-Source Software provided by the Supplier is provided “as is” and expressly subject to the disclaimer in clause 4.

7.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

8. Limits of liability

8.1 Except as expressly stated in clause 8.2:

(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill;
(vi) loss or corruption of data,

(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and

(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.

8.2 The exclusions in this Agreement shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.

8.3 All dates supplied by the Supplier for the delivery of the Software shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.

8.4 All references to “the Supplier” in this clause shall, for the purposes of this clause and clause 7 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause.

9. Intellectual property rights

9.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

10. Data protection

10.1 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation):

(a) any data protection legislation from time to time in force in the UK including, the Data Protection Act 2018 and any successor legislation; and
(b) for so long as and to the extent that the law of the EU has legal effect in the UK, the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable EU regulation relating to privacy.

10.2 This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.

11. Force majeure

11.1 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 time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for two (2) months, the party not affected may terminate this Agreement by giving 14 days’ written notice to the affected party.

12. Termination

12.1 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 7 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 and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
(c) 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 within the meaning of section 123 of the Insolvency Act 1986;
(d) 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;
(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(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 (being a company, partnership or limited liability partnership);
(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) 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 (c) to (j) above (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.

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

12.3 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.

12.4 On termination for any reason:

(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier’s option) all copies of the Software and the Source Code Materials then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.

12.5 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. Notices

13.1 Any notice given to a party under or in connection with this Agreement shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email. A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication (having the meaning given to that term in Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002) unless required to be physically delivered under law.

13.2 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by email, 2 hours after the time sent (as recorded on the device from which the sender sent the email), unless the sender receivesan automated message that the email has not been delivered.

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

14. Governing law and jurisdiction

14.1 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) shall be governed by and construed in accordance with the law of England and Wales.

14.2 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).

15. Miscellaneous

15.1 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.

15.2 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.

15.3The General Terms & Conditions and the Special Terms, if any, contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. In the event of a conflict between the General Terms & Conditions and the Special Terms, if any, the Special Terms will prevail.

15.4 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

15.5 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. If any provision or part-provision of this Agreement is deemed deleted, 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.

15.6 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

15.7 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.

15.8 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. Each party confirms it is acting on its own behalf and not for the benefit of any other person.