Terms and Conditions V3.3
These Terms and Conditions, the terms set forth above in the Order Form and any Statement of Work, Schedule, exhibit, or addenda signed by authorised representatives of the parties comprise the Master Services Agreement (“Agreement”) between Growthonics, Ltd. (“Growthonics”), and the Growthonics customer identified in the Order Form and the signature block above and below (“Customer”). The Agreement governs the use by Customer of the Services, (each an “Offering” and together the “Service(s)”). By accessing the Services, Customer agrees to the terms of this agreement. Growthonics’ offer is conditioned upon acceptance by Customer of these terms, including any additional terms referenced herein. Growthonics rejects any Customer Form Terms (as defined below) that add to, vary from, or conflict with these terms. Growthonics’ failure to object to Customer terms contained in any communication from Customer is not a waiver of this paragraph. Customer acknowledges and agrees that it has not relied on any promise, statement or representation made or given by or on behalf of Growthonics which is not set out in these terms.
Growthonics shall provide Customer the Services, based on the price in the Order Form, consisting of lead generation and ancillary services made generally available by Growthonics. Services may include Growthonics’ underlying proprietary information, third-party products or content licensed by Growthonics for inclusion in the Services, and any digital or hardcopy content, and other copyrighted materials and content provided as part of the Services. Subject to Customer receiving the Services in accordance with the terms and conditions of this Agreement, Growthonics hereby grants to Customer, for the duration of the Term, a limited, non-exclusive, non-transferable, revocable right, without the right to sub-licence, to use the content provided by Growthonics, solely for the Customer’s internal business operations and in accordance with the usage rights as specified in this Agreement. Customer shall ensure that access and use, is restricted to its employees, agents, and independent contractors of the Customer. The rights provided under this Agreement are granted to Customer only, and shall not be considered granted to any subsidiary, holding company or Affiliate (including future Affiliates) of the Customer. All rights not expressly licenced to Customer hereunder are reserved to Growthonics. No implied licences are granted herein. Growthonics shall use commercially reasonable efforts to make the Services available. This Agreement is non-exclusive and shall not prevent Growthonics from entering into similar Agreements with third parties, or from independently developing, using, selling, or licensing services which are similar to those provided under this Agreement. Notwithstanding anything to the contrary in this Agreement, from time to time at its sole reasonable discretion Growthonics may make changes to the Services, in order to enhance or remedy any issues with the Services.
The Fees for the Services are as set forth in each Order Form or Statement of Work. Customer will also make a deposit equivalent to one (1) month of fees to cover outstanding fees and expenses in the event of non-payment. Customer agrees to pay such fees and reimburse Growthonics for all pre-approved expenses incurred in connection with the performance of any Services. Customer will at all times ensure that it has provided Growthonics with accurate and valid billing information. Unless otherwise specified in an Order Form or SOW, all Fees and expense reimbursements are payable net thirty (30) days from receipt of a valid invoice. In order to dispute any invoiced amounts, Customer will have seven (7) days to dispute any part of the Fees, and after this period Customer must pay the undisputed invoiced amounts in a timely manner and provide Growthonics with a reasonable basis for the dispute in writing within thirty (30) days from receipt of the applicable invoice. A purchase order will not be a requirement for the enforceability of the terms of this Agreement. The parties agree that any terms or conditions appearing on any purchase order or other supplements that are in addition to, or different from, the terms and conditions of this Agreement (“Form Terms”), shall be void and of no force or effect. Customer agrees to pay the Fees for the Services, and the Professional Services set forth in each Order Form or SOW or as invoiced by Growthonics in accordance with the payment terms in this Agreement.
If Customer’s use of the Services exceeds the allocation set forth for the Customer or otherwise, Customer shall pay the Additional Fees as set forth above in the Order Form or as invoiced by Growthonics. The Services can be upgraded at any time, and the parties agree that this shall cause the initiation of a new Initial Term and the increased Fees will be charged starting on the next billing cycle. The Services can only be downgraded at the end of the corresponding Initial or Renewal Term. Growthonics reserves the right to increase Fees annually and/or modify its fee structure for the Services upon thirty (30) days prior notice to Customer (which may be sent by email). All Fees are non-cancellable and non-refundable, and not subject to pro-rata refund in case of early termination of an Initial or Renewal Term.
The fees do not include applicable taxes or (if applicable) withholdings. Customer shall be responsible for any applicable sales, use, excise, VAT, GST, or other taxes (excluding taxes based on Growthonics’ net income), levies, duties or withholdings that may apply. In the event that Growthonics pays any taxes or withholdings on Customer’s behalf, Growthonics will invoice Customer for such amounts as separately stated charges, and Customer agrees to pay such taxes in accordance with this Agreement.
If any reasonably undisputed payment for the Services is overdue, Growthonics may, without limiting its other rights and remedies, for payments more than fourteen (14) days overdue, suspend Customer access to any or all Services until all outstanding amounts are paid in full; and/or for payments more than thirty (30) days overdue, assess a late charge equal to 1.5% per month on all outstanding amounts. Customer shall be responsible for and pay on demand Growthonics’ reasonable attorney fees and other expenses incurred to collect overdue payments under this Agreement.
This Agreement shall commence on the Effective Date and continue during the Initial Term as stated in the Order Form (“Initial Term”) and any renewal period (each a “Renewal Term”) for so long as any Order Form or SOW is in place (collectively the “Term”). This Agreement shall be automatically renewed for successive Renewal Terms as established in the Order Form. A party may elect not to renew this Agreement subject to providing notice sixty (60) days in advance of the end of the Term. Either party may terminate this Agreement earlier, only in the event such other party has committed a material breach of this Agreement that remains uncured thirty (30) days after initial written notice of such breach, or if 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, or the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment; or any of the parties is presumed to be unable to pay its debts or 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 insolvency or bankruptcy.
On termination of this Agreement for any reason, Growthonics shall be entitled to receive from the Customer all Fees and expenses accrued or incurred under this Agreement up to the date of termination; all licences and user rights granted under this Agreement shall immediately terminate and the Customer shall, and shall procure that all Authorised Users shall, immediately cease all use of the Services and Growthonics may destroy or otherwise dispose of any of the Customer data in its possession. Customer shall pay all reasonable expenses incurred by Growthonics in returning or disposing of Customer Data. 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 this Agreement which existed at or before the date of termination shall not be affected or prejudiced.
4. Service Conditions
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Growthonics’ standard published policies then in effect (the “Policies”) and all Applicable Laws and regulations.
Customer shall provide Growthonics with all necessary cooperation in relation to this Agreement; and all necessary access to such information, documents, items and materials as may be required by Growthonics in order to provide the Services. Customer shall comply with all Applicable Laws and regulations with respect to its activities under this Agreement; and carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. Customer shall obtain and maintain all necessary licences, consents, and permissions necessary for Growthonics, its contractors, and agents to perform their obligations under this Agreement. Growthonics does not and cannot control the flow of data to or from Growthonics’ network and other portions of the internet, and accordingly Growthonics disclaims any and all warranties and liabilities resulting from or related to a failure in the performance of internet services. In the event of any failure of the conditions described above or delays in the Customer’s provision of such assistance as agreed by the parties, Growthonics may adjust any aspects related to the performance of its obligations, as reasonably necessary.
Customer shall not permit any person other than an Authorised User to access and use the Services and the Customer shall not, and shall procure that no Authorised User shall, save for the allocation of Authorised User accounts, licence, sublicence, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way.
Customer shall be responsible for its employees, consultants and agents that use the Services provided hereunder; use the Services in compliance with all Applicable Laws; and comply with all requirements related to its use.
Growthonics shall provide the Services to Customer in accordance with the Order Form in all material respects, using its commercially reasonable endeavours to meet any dates for the performance of the Services specified in the Order Form, it shall use reasonable care and skill, and act in conformity with industry practice. Growthonics shall comply with the Customer’s reasonable instructions and all Applicable Laws and regulations, and comply with any additional responsibilities set out in the relevant SOW.
Growthonics’ obligations under this Agreement are subject to Customer compliance with all Applicable Laws, including but not limited to any export control laws. The Services, Growthonics’ Intellectual Property, and derivatives thereof may be subject to export laws and regulations of the United Kingdom and other jurisdictions. Each party represents that it is not named on any denied-party list. Customer shall not permit users to access or use in violation of any export embargo, prohibition, or restriction. Customer represents that Customer, and its Authorised Users are not located in embargoed country or are a prohibited end user under export control laws. Upon Growthonics’ request, Customer shall promptly provide Growthonics with all relevant information pertaining to the Authorised Users or customers, the particular destination and the particular intended use of the Services provided by Growthonics. For purposes of this Agreement. “Applicable Law” shall mean all laws, rules, regulations, treaties (and similar governmental obligations), including federal, local, national, international, or multinational, that are applicable to the party as the context requires.
5. Intellectual Property and Data
Customer shall retain all rights to its intellectual property provided to Growthonics (but specifically excluding any modifications, enhancements or derivatives created by Customer or any third-party of any Growthonics Intellectual Property). All Intellectual Property rights in the Services, in any form, including without limitation any modifications, enhancements, results and derivatives thereof, belong to, and shall remain vested in, Growthonics (collectively, the “Growthonics Intellectual Property”), and the Customer shall have no rights in or to the Services other than the right to use them in accordance with the terms of this Agreement. This Agreement does not grant the Customer any rights to, 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 Growthonics Intellectual Property.
Growthonics owns all rights, title, and interest in and to Growthonics Data (defined as all data, content, templates, best practices, or information that is provided to Customer by or through the Services; or is generated by the Services, including the Derived Data, metadata and performance and product improvement analytics data relating to Customer’s and Authorised Users’ activities and content, which may include but is not limited to usage logs, machine learning models, and performance databases, the Services, and all components thereof, and all related intellectual property rights), and reserves all rights thereto.
Customer hereby grants to Growthonics a non-exclusive licence for the Term to use and process data provided by Customer on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services (“Customer Data”) for the purpose of carrying out Growthonics obligations and exercising its rights under this Agreement. Customer grants to Growthonics a licence to host, use, copy, store, transmit, publish, and display Customer intellectual property and Customer Data for the purposes of the provision of access to and use of the Services by Customer and Authorised Users. Customer acknowledges that Growthonics is not responsible for Customer Data. Customer is responsible for the legality, reliability, integrity, accuracy, completeness and quality of Customer Data and the legality of the Customer’s intended and actual use of Customer Data and for establishing and maintaining adequate security measures to safeguard Customer Data from unauthorised access and copying, and when the Services are provided by Growthonics to Customer, Customer must ensure that backups are carried out as reasonably required. Growthonics shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any event or third-party.
If and to the extent that Growthonics processes any Personal Data it does so as a Processor (as defined by Data Protection Legislation) on the Customer’s behalf when providing the Services or Services and performing its obligations under this Agreement, the Data Protection Addendum shall apply. The Customer acknowledges and agrees that the Data Protection Addendum inserted here in the Data Processing Addendum Schedule (the “DPA”) will govern the relationship formed hereby and in the event of any conflict between such DPA and this Agreement, such DPA will govern. Customer authorises Growthonics to enter into data processing arrangements with downstream processors on Customer’s behalf. As an exception, Customer acknowledges and agrees that Growthonics processes as Controller, only such Personal Data relating to customers, employees and representatives of the Customer and its Authorised Users that are collected and used by Growthonics in order to enable Growthonics to deliver, administer or manage the Services, the Customer’s account, and for the own business purposes of Growthonics, and Personal Data that Growthonics collects when the Customer submits a request for Services, including information about hardware, software and other details related to the support incident, such as user authentication information, information about the condition of the service, and error-tracking files, along with the name and email address of Growthonics contacts at the Customer. Growthonics processes such data in order to respond to the request and solve the problem reported; to communicate with the Customer information about the Services and any new products and services of Growthonics; and Growthonics may monitor, collect, store and use information on the use and performance of the Services and Software (including Customer Data and Derived Data) to detect threats or errors and, subject to the limitations set forth in Clause, for the purposes of the further development and improvement of the Services. Customer shall ensure that it has all necessary consents and notices in place to enable lawful transfer of Personal Data to Growthonics for the duration and purposes of or set out in this Agreement such that Growthonics may lawfully use, process, and transfer the Personal Data in connection with the provision of the Services or Services and for the purposes set out or referred to in this Agreement.
Customer agrees that it will not and shall not cause any third-party to attempt to or actually copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, distribute, decompile, reverse engineer or disassemble, or otherwise reduce to human-perceivable form all or any portion of the Services (as applicable) in any form or media the Growthonics Intellectual Property or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, Documentation or data related to the Services; access all or any part of the Growthonics Intellectual Property in order to build a product or service which competes with the Services; or use the Growthonics Intellectual Property to provide services to third parties; or sublicence any of the Growthonics Intellectual Property to third parties or sell, resell, rent, sublicence or lease the Growthonics Intellectual Property to third parties; otherwise violate the licence grant or restrictions set forth herein; interfere with or disrupt the integrity or performance of the Services and Services, Growthonics operations, or third-party data contained therein either directly or using third party technology.
Customer is not permitted to change or modify the Growthonics Intellectual Property in any way. Without limiting the foregoing, in the event of any change, modification, extension or correction thereof, Customer hereby irrevocably assigns to Growthonics any and all rights it may be deemed to have in any such change, modification, extension or correction, and agrees to execute all documents necessary to implement and effect such assignment. To the extent that Customer is unavailable or unwilling to execute such documents then Customer hereby appoints Growthonics as its attorney in fact for the purpose of executing the forgoing assignment and agrees to sign this Agreement as a Deed for such purposes. Customer shall not misappropriate any of the Growthonics Intellectual Property, or use, or permit, enable or assist any third party to use, the Growthonics Intellectual Property to create competing products or services, or modify Growthonics Intellectual Property or use any of the Growthonics Intellectual Property unless otherwise agreed to by Growthonics in a signed writing.
Each party may use the other party’s logo, name, trade name, trademarks, and icons (collectively, the “Logos”) for certain marketing and promotional purposes and to allow a link back to each other’s website. In addition, Growthonics may identify Customer as a customer of Growthonics publicly and describe the Services used by Customer and Customer’s experience with such Services and Growthonics may develop and make available one or more case study, magazine article, video, press release (including a win or any press release announcement) and/or podcast identifying Customer by name for printed or online publication, on the Growthonics website, any social media or elsewhere, related to Customer’s use of the Services. If a party notifies the other party of any incorrect usage of its Logos, the notified party shall promptly correct such usage. All use of a party’s Logos by the other party shall inure to the benefit of the party owning the Logos and such owning party shall be the sole party entitled to register its Logos. Notwithstanding the foregoing, Customer agrees that Growthonics may use Customer’s Logos to provision the Services, and Customer consents, on its behalf and on behalf of its Authorised Users, to receive marketing messages from Growthonics.
6. Confidential Information
Growthonics and Customer understand and agree that in connection with the negotiation and performance of this Agreement, each party may have had or have access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects, know-how, ideas, and technical, business, pricing information, financial and marketing information and strategies and any other information that the receiving party reasonably should know is confidential (“Confidential Information”).
Each party (on its behalf and on behalf of its subcontractors, employees or representatives, or agents of any kind) agrees to hold and treat all Confidential Information of the other party in confidence and will protect the Confidential Information with the same degree of care as each party uses to protect its own Confidential Information of like nature. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party except that the receiving party may disclose the Confidential Information or portions thereof to its directors, officers, employees, agents and representatives on a need-to-know basis; its vendors or subcontractors on a need-to-know basis and under confidentiality obligations no less restrictive than those contained herein; or as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this Clause, the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the availability and advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information.
Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information, after five (5) years following the disclosure thereof, or any information that the receiving party can document (i) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representative); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality obligation with respect to the Confidential Information; (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any Applicable Law, (iv) has been approved by a party for disclosure without restriction, in a written document signed by a duly authorised officer of such party, or (v) was rightfully in a party’s possession prior to disclosure by the other party, as shown by the party’s records.
This clause shall supersede any previous Agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier Agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosure. Upon termination or expiration of this Agreement and upon the disclosing party’s written request, the other party shall return or destroy such party’s Confidential Information in its possession.
Each party represents and warrants to the other party that, to the best of its knowledge: (a) the signatory signing this Agreement on its behalf has the right to sign this Agreement; (b) this Agreement does not and shall not conflict with any other agreement entered into by it; and (c) it owns (or has been duly licenced to use) all rights required in order to grant the licences granted herein.
Growthonics does not warrant that the Services will be error-free or that any defect will be corrected. Growthonics is not responsible for and shall have no liability in respect of any damage caused by errors or omissions in any information, instructions or data provided by Customer or third parties in connection with the Services, or any actions taken by Growthonics at Customer’s direction; any delays, delivery failures, or any other loss or damage resulting from the transfer of data over telecommunications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such telecommunications facilities. Customer assumes sole responsibility for results obtained from the use of the Services, by Customer and its Authorised Users, and for conclusions drawn from such use; to the maximum extent permitted by law, Growthonics disclaims any and all representations, conditions and warranties whether express or implied by statute or common law or otherwise that the Services, are or will be of satisfactory quality, fit for a particular purpose, provided with reasonable care and skill or non-infringing, or the results or data obtained by the Customer through the use of the Services will meet the Customer’s requirements. The terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded by the parties from this Agreement.
Growthonics warranties are for the benefit of Customer only and are void if: (i) the Services are integrated with third party products; (ii) the Services are altered by anyone other than Growthonics; (iii) Customer, or Customer’s agents or affiliates, improperly use the Services; (iv) the Services are used in violation of Growthonics’ instructions, or this Agreement.
8. Exclusion and Limitation of Liability
The following clause sets out the entire financial liability of Growthonics (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer arising under or in connection with this agreement (including under any indemnity); in respect of any use made by the Customer of the Services or any part of them; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
Exclusion of Liability. The parties shall not be liable whether in contract (including under any indemnity), tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise under or in connection with this agreement for any loss of profits, loss of business, loss of anticipated savings, loss of business opportunity, depletion of goodwill, damage to reputation, loss or waste of management or staff time or interruption of business, or loss or corruption of data or information or similar losses (in each case, whether direct or indirect), or any special, indirect or consequential loss, costs, damages, charges or expenses. Nothing in this agreement excludes the liability of a party for death or personal injury caused by its own negligence; fraud or fraudulent misrepresentation; or any other liability that cannot by law be limited or excluded. Neither party shall be liable for any third-party services, code, technology, applications, policies, procedures, or products. If Applicable Law does not allow the exclusion of liability as set forth above, this exclusion will be deemed modified solely to the extent necessary to comply with Applicable Law.
Limitation of Liability. Excluding payment of Fees obligations and breaches of the Intellectual Property and Data clause, a party’s total aggregate liability in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise under or in connection with this agreement, for any and all events, shall be limited to the total fees payable by the Customer (being the aggregate Fees paid for the Services and for Professional Services) during the twelve (12) months immediately preceding the date on which the claim or cause of action arose, such limit to be applicable to any and all causes arising from the relationship between the parties. In the event that Applicable Law does not allow the limitation of liability as set forth above, this limitation will be deemed modified solely to the extent necessary to comply with Applicable Law. All exclusions and limitations contained herein will also apply to a party’s third-party suppliers. The parties expressly acknowledge that they have agreed to the pricing and entered into this Agreement, in part in reliance upon the exclusions and limitations of liability specified herein, which allocate the risk between Growthonics and Customer and contributes to the basis of the bargain between the parties.
9. Force Majeure.
The parties shall have no liability to each other under this Agreement if 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 a party or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, terrorism, vandalism, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, epidemic or pandemic, or default of suppliers or sub-contractors, unavailability of communication facilities, utility or Internet service provider failure, lightning, unavailability of energy sources or any other causes beyond the reasonable control of such party. Force Majeure shall not exclude or limit the liability of Customer for payment obligations arising under this Agreement.
10. Professional Services.
The parties may agree that Growthonics will provide Professional Services to the Customer by agreeing and signing a Professional Services SOW which shall then be deemed incorporated within and subject to the terms of this Agreement. If either party wishes to change the scope of the Professional Services, it shall submit details of the requested change to the other party in writing. If either party requests a change to the scope or terms of the Professional Services, Growthonics shall, within a reasonable time, provide a written estimate to the Customer of the likely time required to implement the change; any variations to the Professional Service Fees arising from the change; and any other impact of the change on the terms of this Agreement. The estimate shall remain open for acceptance for a period of ten (10) Business Days from the date of issue and shall lapse if not accepted by the Customer in writing within that time. When the estimate is accepted by the Customer in writing, it shall take effect on the terms and conditions of the Agreement.
Notices. Any notice under this Agreement must be in writing and sent by certified letter, receipted commercial courier, or e-mail transmission with delivery confirmation or acknowledgement in like manner by the intended recipient, to the respective addresses shown on the Order Form(s) or SOW, and shall be deemed given on the date first received by the recipient. Any party may from time to time change such address by giving the other party notice of such change in accordance with this section.
Independent Contractors. The parties are independent contractors and neither this Agreement nor the performance of the Services shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between the parties; and neither party will have the right, power, or authority (whether expressed or implied) to enter or assume any duty or obligation on behalf of the other party.
Entire Agreement, Order of Precedence. This Agreement, including all exhibits, Order Forms, Schedules, SOWs, and any addenda or exhibits duly signed by authorised representatives of the parties constitute 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 other exhibit or addendum hereto, including any mutually executed Order Form or SOW, the terms of such other document shall prevail but only with respect to the subject matter therein. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or other unilateral order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. No amendment to the terms set forth in this Agreement will be effective unless signed by authorised representatives of the parties hereto, except that Growthonics has the right to modify its Offerings and Services (including but not limited to discontinuing a product and/or certain product functionalities and/or features) at any time at its sole discretion.
No waiver. No failure of either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights.
Successors: This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
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 delayed or withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and SOWs entered into subject to it), without consent of the other party, 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 and payment by Customer of all committed and/or outstanding fees.
Interpretation rules: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the unenforceable provision shall be interpreted to render it enforceable while approximating the parties’ intent as closely as possible. This Agreement should not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation or drafting of this Agreement. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Headings shall not affect the interpretation of this Agreement. Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement, A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision. A reference to writing or written does not include e-mail.
Governing Law and Venue: This Agreement shall be governed in all respects, including validity, interpretation, and effect, by the laws of England and Wales, and each party irrevocably agrees that the courts of the city of London shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation. Each party expressly waives its right to a trial by jury. The application of the UN Convention on Contracts for International Sale of Goods is expressly excluded.
Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. The counterparts of this Agreement and all ancillary documents may be executed and delivered by electronic signature and the receiving party may rely on the receipt of such document by such means as if the original had been received.
Survival: The termination of this Agreement shall not amend, alter, or modify the rights and obligations of the parties under those clauses that due