1.1 The definitions and rules of interpretation in this clause apply in these Terms and Conditions.
Agreement: the agreement between Risk Warden and the Customer for the sale and purchase of the Risk Warden Platform comprising the Confirmation of Subscription and these Terms and Conditions;
Assessment: the risk assessment or audit of an assessable area;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Confidential Information: information that is proprietary or confidential (however recorded or preserved) disclosed by a party to the other party or to which the other party has access pursuant to this Agreement including but not limited to:
(a) the terms of this Agreement;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, client, suppliers, plans of the disclosing party;
(ii) any analysis, conclusions or other information or data generated by the use of the Risk Warden Platform or any such derivative information or data;
(iii) the operation, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
(c) in relation to Risk Warden, any information contained in the Report;
(d) any information identified as Confidential Information in clause 15.7 or clause 15.8;
Confirmation of Subscription: the email generated and sent to the Customer following their selection of a Subscription Plan and which forms a part of this Agreement. The Confirmation of Subscription contains the following information: Customer name, registered address, email address and telephone number; Customer contact name, email address and telephone number; the Subscription Plan selected; the Initial Subscription Term; the number of Seats; the Subscription Fees; and the length of any trial period (if applicable);
Controller: has the same meaning given to that term (or the term controller) as set out in the Data Protection Laws;
Customer: the customer as set out in the Confirmation of Subscription;
Customer Data: the data inputted by the Customer, Seats or Task Users or data of the Customer, Seats or Task Users which is inputted by Risk Warden on the Customer’s behalf for the purpose of using the Risk Warden Platform or facilitating the Customer’s use of the Risk Warden Platform;
Customer Intellectual Property: any intellectual property owned by or assigned to the Customer prior to the Effective Date.
Data Protection Laws: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);and the guidance and codes of practice issued by the Commissioner or other relevant regulatory authority and which are applicable to a party;
Data Subject: has the same meaning given to that term as set out in the Data Protection Laws;
Documentation: the document made available to the Customer by Risk Warden from time to time which sets out a description of the Risk Warden Platform and instructions for the use of the Risk Warden Platform;
Effective Date: has the meaning given in clause 2.2;
Free Subscription: a period during which the Customer may access and use the Risk Warden Platform and the Documentation and Reports subject to availability under the relevant Subscription Plan and in accordance with the terms of this Agreement without payment of a Subscription Fee on an unpaid trial or free basis;
Hosting Provider: means hosting provider engaged by Risk Warden to enable Risk Warden to provide the Risk Warden Platform on a hosted subscription basis;
Initial Subscription Term: as set out in the Confirmation of Subscription beginning on the date the Customer purchases a Subscription or registers for a Free Subscription pursuant to clause 3.2 and clause 6 and having a duration as set out in the Confirmation of Subscription;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day;
Personal Data and Personal Data Breach: have the same meaning given to that term as set out in the Data Protection Laws;
Processor: has the same meaning given to that term (or the term processor) as set out in the Data Protection Laws;
Report(s): the report(s) and Assessment(s) available using the Risk Warden Platform;
Renewal Period: the period described in clause 19.1;
Representatives: the Customer’s insurers or any regulatory or official bodies, who need to know the information contained in the Report;
Risk Warden: Risk Warden Limited, a company registered in England and Wales under company number 09590964, whose registered address is Communication House, Victoria Avenue, Camberley, Surrey, England, GU15 3HX;
Risk Warden Platform: the subscription services to the Software as provided by Risk Warden to the Customer under this Agreement and as specified in the Confirmation of Subscription that allows the Customer to manage, assess and verify compliance;
Seats: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Risk Warden Platform and the Documentation in accordance with the Subscription Plan;
Software: the online software applications provided by Risk Warden as part of the Risk Warden Platform;
Subscriptions: the subscriptions purchased by the Customer pursuant to clause 13.1 or the Free Subscriptions made available to the Customer pursuant to clause 6 which entitle Users to access and use the Risk Warden Platform and the Documentation and create Reports in accordance with this Agreement;
Subscription Fees: the subscription fees payable by the Customer to Risk Warden for the Subscriptions, as set out in the Confirmation of Subscription;
Subscription Plan: the subscription plan offered by Risk Warden details of which can be found on the Website;
Subscription Suite: the suite of Software within which each Subscription Plan is offered to the Customer by Risk Warden, as detailed https://riskwarden.com/pricing/;
Subscription Term: has the meaning given in clause 19.1 (being the Initial Subscription Term together with any subsequent Renewal Periods); for Free Subscriptions, the Subscription Term will be the period during which the Customer has access to the Free Subscription;
Support Services: the support provided by Risk Warden in relation to the Risk Warden Platform, as described at https://riskwarden.freshdesk.com/support/home or such other website address as may be notified to the Customer from time to time;
Task Users: those employees, agents and independent contractors of the Customer who have limited access to the Risk Warden Platform and are only authorised by the Customer to complete specific tasks on the Risk Warden Platform and/or add specific Customer Data relating to such tasks only;
Terms and Conditions: these terms and conditions;
Upgrade: a major version upgrade of the Risk Warden Platform;
Users: the Seat(s) and Task User(s);
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
Website: the Risk Warden website where the Customer may select a Subscription Plan, https://riskwarden.com/pricing/
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or consolidated from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.7 Any words that follow include, includes, including, in particular or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2.1 The Customer’s submission of its selected Subscription Plan on the Website constitutes an offer by the Customer to purchase or receive a Subscription in accordance with this Agreement.
2.2 The Customer’s offer under clause 2.1 shall only be deemed to be accepted when Risk Warden issues the Customer a written Confirmation of Subscription at which point and on which date this Agreement shall come into existence (Effective Date).
2.3 These Terms and Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.1 Subject to the terms of clause 5 and the Customer’s payment of the amounts due under this Agreement, the restrictions set out in this clause 3 and the other terms and conditions of this Agreement, Risk Warden hereby grants to the Customer:
(a) a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Users to use the Risk Warden Platform and the Documentation during the Subscription Term solely for the Customer’s internal business operations; and
(b) a non-exclusive, worldwide, fully paid up, royalty free, perpetual licence to use and copy the Report for the Customer’s internal business operations.
3.2 When purchasing a Subscription the Customer may choose between a monthly or annual subscription or, where agreed with Risk Warden, an alternative subscription, in respect of each Subscription Plan, unless otherwise negotiated and agreed in accordance with clause 22.2.
3.3.1 the Customer will receive a Confirmation of Subscription from Risk Warden; and
3.3.2 in respect of each Subscription, when payment has been received from the Customer for the Initial Subscription Term pursuant to clause 13.2, the Customer may allocate such Seats to the Users for the purpose of allowing the Seats to use the Risk Warden Platform.
3.4 In relation to the Seats or Task Users (as applicable), the Customer undertakes that:
(a) the maximum number of Seats that it authorises to access and use the Risk Warden Platform and the Documentation shall not exceed the number it has purchased from time to time;
(b) it shall not, and shall procure that the Seats shall not, allow any Subscription to be used by more than one individual Seat unless it has been reassigned in its entirety to another individual Seat, in which case the prior Seat shall no longer have any right to access or use the Risk Warden Platform and/or Documentation;
(c) it shall, and shall procure that the Seats and Task Users shall, keep confidential and not under any circumstances share passwords or access details to facilitate access to the Risk Warden Platform with any third party (including, the Customer’s employees, officers, agents, contractors or independent assessors);
(d) it shall permit Risk Warden or Risk Warden’s designated auditor to audit the Customer’s use of the Risk Warden Platform and all Seats’ usage of the Risk Warden Platform for compliance with this Agreement;
(e) if any audit as referred to in clause 3.4(d) reveals that any account details or passwords have been provided to any individual who is not a Seat, then without prejudice to Risk Warden’s other rights, Risk Warden may disable the Customer’s access to the Risk Warden Platform and Risk Warden may permanently delete or destroy any data submitted or populated by the Customer 30 days after access to the Risk Warden Platform was disabled; and
(f) if any audit as referred to in clause 3.4(d) reveals that the Customer has underpaid Subscription Fees to Risk Warden, then without prejudice to Risk Warden’s other rights, the Customer shall pay to Risk Warden an amount equal to such underpayment as calculated in accordance with the Confirmation of Subscription within 10 Business Days of the date of the relevant audit in which case the relevant Seat’s account details and password will be enabled.
3.5 The Customer shall not, and shall procure that the Users shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Risk Warden Platform that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(g) in any way breaches any applicable local, national or international law or regulation or is otherwise illegal; or
(h) causes damage or injury to any person or property;
and Risk Warden reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(c) establish a link to the Risk Warden Platform in such a way to suggest any form of association, approval or endorsement by Risk Warden of the Customer where none exists;
(d) use the Risk Warden Platform to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam);
(e) use the Risk Warden Platform in any manner which interferes with or disrupts the integrity or performance of the Risk Warden Platform or the Software;
(f) access all or any part of the Risk Warden Platform and Documentation in order to build a product or service which competes with the Risk Warden Platform and/or the Documentation;
(h) subject to clause 22.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Risk Warden Platform and/or Documentation available to any third party except the Users, or
(i) attempt to obtain, or assist third parties in obtaining, access to the Risk Warden Platform and/or Documentation, other than as provided under this clause 3.
3.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Risk Warden Platform and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Risk Warden.
3.8 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1 Subject to clause 4.2, the Customer may, from time to time during any Subscription Term, upgrade and purchase a Subscription Plan within the existing Subscription Suite or an alternative Subscription Plan within a superior Subscription Suite than that set out in the Confirmation of Subscription and Risk Warden shall grant access to the Risk Warden Platform, Documentation and Report(s) to such additional Users or to such additional functionality in accordance with the new Subscription Plan chosen by the Customer and the provisions of this Agreement.
4.2 The Customer shall pay the relevant fees for the new Subscription Plan in accordance with clause 13. Risk Warden shall activate any the new Subscription Plan and any additional Seats immediately after payment has been received from the Customer for such new Subscription Plan and the Risk Warden Platform provided by Risk Warden shall be deemed updated accordingly. If the new Subscription Plan is purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by Risk Warden for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
5.1 Where the Customer wishes to downgrade an existing Subscription Plan or change to an alternative Subscription Plan with reduced functionality, the Customer shall contact Risk Warden to arrange this a minimum of 30 days prior to the end of the Initial Term or Renewal Period (as applicable). Subject to agreement by Risk Warden, Risk Warden shall activate the new Subscription Plan and adjust the number of Users upon termination or expiry of the Initial Term or Renewal Period of the existing Subscription Plan (as applicable). Under no circumstances will Risk Warden activate a new Subscription Plan or reduce the number of Users during the Initial Term or Renewal Period (as applicable).
6. Free subscriptions
6.1 Where a Customer registers for a Free Subscription, the relevant Subscription Plan will be made available to the Customer free of charge until:
(a) the end of a free trial period (if not terminated earlier); or
(b) the start date of the Customer’s paid subscription;
unless terminated earlier in accordance with the terms of this Agreement.
6.2 Without affecting any other right or remedy available to it, Risk Warden may for any reason and without notice, terminate the Customer’s Free Subscription, including where the Customer’s Free Subscription has remained inactive for six months.
6.3 Where a Customer is invited to register for a Free Subscription and should the Customer elect not to upgrade the Free Subscription at the end of the Subscription Term, the Customer will be automatically downgraded to the next level of access within the relevant Subscription Suite permitted on a Free Subscription basis. In the event no Free Subscription is available within the Customer’s chosen Subscription Suite, and subject to the availability of an alternative Free Subscription with reduced functionality, such Free Subscription shall be offered to the Customer on the terms of this Agreement.
7. Withdrawal of subscription plans
7.1 The Customer acknowledges that at any time during the Initial Term or Renewal Period (as applicable) Risk Warden may be required reduce or alter the functionality of, or withdraw, a Subscription Plan, subject to Risk Warden giving the Customer 90 days’ written notice of such alteration or withdrawal. Risk Warden shall provide full details of any such reduced or altered functionality to a Subscription Plan either by emailing the Customer or by placing a notice on the Risk Warden Platform. Where Risk Warden reasonably determines that a Subscription Plan is to be withdrawn, Risk Warden shall email the Customer and shall offer the Customer the option to select an alternative Subscription Plan subject to the terms of this Agreement.
8. THE RISK WARDEN PLATFORM and support services
8.1 Risk Warden shall, during the Subscription Term, provide the Risk Warden Platform and make available the Documentation to the Customer on and subject to the terms of this Agreement.
8.2 Risk Warden shall use commercially reasonable endeavours to make the Risk Warden Platform available 24 hours a day, seven days a week, except for:
(a) when Risk Warden is carrying out an Upgrade to the Risk Warden Platform, provided that Risk Warden has given 10 Business Days’ prior written notice to the Customer;
(b) planned maintenance carried out during the maintenance window of 8.00 pm to 2.00 am UK time;
(c) maintenance performed during Normal Business Hours, for which Risk Warden will use reasonable endeavours to give the Customer at least 5 Business Days’ notice in advance;
(d) unscheduled maintenance performed outside Normal Business Hours, for which Risk Warden will use reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and
(e) emergency maintenance in respect of which Risk Warden will use reasonable endeavours to notify the Customer as soon as possible.
8.3 Risk Warden will, as part of the Risk Warden Platform, provide the Customer with Support Services during Normal Business Hours.
9.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9.2 The Customer warrants to Risk Warden that the Customer Data will be true, complete, accurate and up to date.
9.3 The Customer shall not, and shall procure that (i) the Users shall not; (ii) the Customer Data does not; and (iii) the Customer’s use of the Risk Warden Platform does not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of a third party;
(c) include any protected health information or personally identifiable health data (HIPPA) unless agreed otherwise by Risk Warden in writing; or
(d) give rise to any cause of action against Risk Warden.
9.5 Notwithstanding clause 18, the Customer shall defend, indemnify, keep indemnified, and hold harmless Risk Warden, its officers, directors, employees, agents, successors and assignees at all times from and against all losses, liabilities, damages, costs, claims, demands, actions, proceedings, orders and expenses (including reasonable legal fees) disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties, which are suffered or incurred by or brought or threatened against, Risk Warden, its officers, directors, employees, agents, successors and assignees, in respect of the warranty provided at clause 9.2.
11.1 Risk Warden undertakes that the Risk Warden Platform will be performed with reasonable skill and care.
11.2 The undertaking at clause 11.1 shall not apply to the extent of any non-conformance which is caused by use of the Risk Warden Platform contrary to Risk Warden’s instructions, or modification or alteration of the Risk Warden Platform by any party other than Risk Warden or Risk Warden’s duly authorised contractors or agents. If the Risk Warden Platform does not conform with the foregoing undertaking, Risk Warden will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 11.1. Notwithstanding the foregoing, Risk Warden:
(a) does not warrant that the Customer’s use of the Risk Warden Platform will be uninterrupted or error-free; or that the Risk Warden Platform, Documentation, the Report(s) and/or the information obtained by the Customer through the Risk Warden Platform will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Risk Warden Platform, Documentation and Report(s) may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
11.3 For the avoidance of doubt, where the Customer cannot access the Risk Warden Platform due to any of the following, Risk Warden shall not be in breach of its obligations under this Agreement:
(a) a fault or failure of the internet or any public telecommunications network;
(b) a fault or failure of the Customer’s computer systems or networks;
(c) any breach by the Customer of this Agreement; or
(d) any unauthorised usage.
11.4 Although Risk Warden has taken commercially reasonable measures to ensure the security of information submitted by the Customer in using the Risk Warden Platform, Risk Warden does not guarantee that the Risk Warden Platform is Virus free nor that the security of information collected during the Customer’s use of the Risk Warden Platform.
11.5 Risk Warden warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
11.6 All warranties given by Risk Warden shall be subject to the Customer using the Risk Warden Platform in compliance with this Agreement.
12.1 The Customer grants Risk Warden a non-exclusive, non-transferable right, without the right to grant sublicences, to incorporate and display the Customer Intellectual Property on the Risk Warden Platform solely to facilitate the Customer’s use of the Risk Warden Platform in accordance with this Agreement.
12.2 The Customer shall:
in order to provide the Risk Warden Platform, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Risk Warden may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Users use the Risk Warden Platform, the Documentation and Report(s) in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Risk Warden, its contractors and agents to perform their obligations under this Agreement, including without limitation the Risk Warden Platform;
(f) ensure that its network and systems comply with the relevant specifications provided by Risk Warden from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Risk Warden’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
12.3 The Customer warrants that the Independent Assessor(s) are competent and appropriately qualified to undertake the Assessment and that proof of such competency and qualification shall be made available to Risk Warden promptly upon Risk Warden’s request.
12.4 Without prejudice to the Customer’s other obligations, the Risk Warden Platform shall be provided on the following terms:
(a) the Customer acknowledges that the quality of the Report is reliant on the quality of Customer Data added to the Risk Warden Platform and instructions of and decisions made by the Users when using the Risk Warden Platform;
(b) the Customer acknowledges that Risk Warden is dependent on a Hosting Provider to provide the Risk Warden Platform. Risk Warden will use its reasonable endeavours to select a reputable Hosting Provider, taking into account the commercial aspects of the offering of such Hosting Provider including prices of the relevant services;
(c) notwithstanding any other provision of this Agreement, Risk Warden does not undertake or agree to provide the Risk Warden Platform at a service level which exceeds those provided to Risk Warden by the Hosting Provider;
(d) the Customer acknowledges and agrees that the Software and or Risk Warden Platform may be inaccessible or inoperable from time to time including as a result of equipment malfunctions, repairs or replacements carried out by the Hosting Provider or reasons beyond Risk Warden’s reasonable control; and
(e) the Agreement shall automatically terminate if the agreement between Risk Warden and the Hosting Provider is terminated as a result of any breach by Risk Warden that is caused by the Customer’s breach of this Agreement (including, but not limited to, a breach by the Customer of clauses 12.4(b) to 12.4(d)) which entitles the Hosting Provider to terminate, suspend or take action against Risk Warden pursuant to its hosting agreement with Risk Warden.
12.5 The Customer acknowledges that the Risk Warden Platform is designed to be compatible only with certain software as notified to the Customer by Risk Warden from time to time. Risk Warden does not warrant or represent that the Risk Warden Platform will be compatible with any other software or systems.
13.1 The Customer shall pay the Subscription Fees to Risk Warden for the Subscriptions in accordance with this clause 13, clause 4 and the Confirmation of Subscription.
13.2 Save in respect of Free Subscriptions and unless otherwise agreed with Risk Warden, the Customer shall, upon selection of the relevant Subscription Plan, provide to Risk Warden or to Risk Warden’s payment service provider (as applicable) valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details. The Customer hereby authorises Risk Warden to bill such credit or debit card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term;
(b) on approval of the new Subscription Plan pursuant to clause 4 for the Subscription Fees payable in respect of such new Subscription Plan; and
(c) subject to clause 19.1, at the end of the Initial Subscription Term and each Renewal Period for the Subscription Fees payable in respect of the next Renewal Period.
13.3 If Risk Warden has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Risk Warden:
(a) Risk Warden may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Risk Warden Platform and Risk Warden shall be under no obligation to provide any or all of the Risk Warden Platform while the invoice(s) concerned remain unpaid. The Customer shall at Risk Warden’s discretion, continue to be charged for the Subscription Fees during any period of suspension; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
(b) are, subject to clause 18.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Risk Warden’s invoice(s) at the appropriate rate.
13.5 Risk Warden shall be entitled to increase the Subscription Fees, the fees payable in respect of the new Subscription Plans purchased pursuant to clause 4 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and the Confirmation of Subscription shall be deemed to have been amended accordingly.
14.1 Save in respect of any Customer Intellectual Property, the Customer acknowledges and agrees that Risk Warden and/or its licensors own all Intellectual Property Rights in the Risk Warden Platform, the Documentation and Report(s). Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Risk Warden Platform, Software, the Report(s) or the Documentation.
14.2 Risk Warden confirms that it has all the rights in relation to the Risk Warden Platform, Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
15.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
15.2 Subject to clause 15.4 and 15.5, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
15.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
15.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 15.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
15.5 The Customer may disclose Risk Warden’s Report to those Representatives who need to know such Confidential Information for the purposes of assessing the Customer’s compliance with the relevant laws and regulations relating to such Assessment.
15.6 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
15.7 The Customer acknowledges that details of the Risk Warden Platform, and the results of any performance tests of the Risk Warden Platform, constitute Risk Warden’s Confidential Information.
15.8 Risk Warden acknowledges that the Customer Data is the Confidential Information of the Customer.
15.9 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.
15.10 The above provisions of this clause 15 shall survive termination of this Agreement, however arising.
16.1 Both parties will comply with all applicable requirements of the Data Protection Laws. This clause 16 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Laws.
16.2 To the extent Risk Warden processes any Personal Data on the Customer’s behalf when performing its obligations under the Agreement, the scope, nature, purpose and duration of which and the types of Personal Data and categories of Data Subject are as follows:
Nature of processing:
Collecting, recording, storing, retrieving and otherwise processing Personal Data.
The provision of the Risk Warden Platform in accordance with the terms of this Agreement.
Duration of processing:
The duration of this Agreement and Customer Data shall be stored on the Risk Warden Platform for a period of 6 months following termination or expiry of this Agreement unless otherwise requested by the Customer to delete or return the Customer Data in accordance with clause 16.3(j)
Types of Personal Data:
– Name and contact details, to include telephone number and email address;
– Any additional personal data which may be uploaded to the Risk Warden Platform by the Customer
Categories of Data Subjects:
– company directors, employees, contractors, individuals with responsibilities for compiling and ownership of the assessment
16.3 The parties acknowledge that for the purpose of the Data Protection Laws, and to the extent Risk Warden processes personal data on the Customer’s behalf, the Customer is the Controller and Risk Warden is a Processor. In any such case and without prejudice to the generality of clause 16.1:
(a) the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to Risk Warden so that Risk Warden may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer’s behalf;
(b) the Customer shall ensure that any relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by the Data Protection Laws and all other applicable data protection legislation;
(c) Risk Warden shall process the Personal Data only on the written instructions reasonably given by the Customer from time to time unless Risk Warden is required by the laws of any member of the European Union, the United Kingdom or the European Union applicable to Risk Warden to process the Personal Data. Where Risk Warden is relying on such applicable laws as the basis for processing, Risk Warden shall promptly notify the Customer of this before performing the processing required by such applicable laws unless these laws prohibit Risk Warden from notifying the Customer;
(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(e) Risk Warden shall ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(f) Risk Warden shall assist the Customer, at the Customer’s cost, in respect to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(g) Risk Warden shall not transfer any Personal Data outside the UK or the EU unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled: (a) the Customer or Risk Warden has provided appropriate safeguards in relation to the transfer; (b) the Data Subject has enforceable rights and effective legal remedies; and (c) Risk Warden complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred;
(h) Risk Warden shall make available to the Customer a list of any sub-contractors and service providers engaged in the processing of the Customer’s Personal Data and include in any contract with such sub-contractors and service providers who process Personal Data on the Customer’s behalf, provisions which are equivalent to those in this clause 16;
(i) Risk Warden shall notify the Customer without undue delay on becoming aware of a Personal Data Breach affecting Customer Data;
(j) Risk Warden shall at the written direction of the Customer, delete or return the Personal Data and copies thereof to the Customer on termination of this Agreement unless required by applicable law to store the Personal Data; and
(k) Risk Warden shall maintain complete and accurate records and information to demonstrate its compliance with this clause 16 and allow for annual audits for this purpose by an independent auditor selected by Risk Warden or otherwise acceptable to the Customer (acting reasonably), at the Customer’s cost:
(i) giving Risk Warden reasonable prior notice of such information request, audit and/or inspection;
(ii) ensuring that all information obtained or generated by the Customer or its auditor(s) in connection with such information request, audit and inspection is kept strictly confidential (save for disclosure required by applicable law);
(iii) ensuring that the audit or inspection is undertaken during normal business hours of Risk Warden, with minimal disruption to Risk Warden’s business, Risk Warden’s sub-processors’ business and the business of other customers of Risk Warden; and
(iv) paying Risk Warden’s reasonable costs for assisting with the provision of information and allowing for and contributing to inspections and audits.
16.4 The Customer consents to Risk Warden’s use of sub-contractors and service providers in accordance with clause 16.2(h). Risk Warden shall give the Customer not less than 60 days’ written notice of a change in the list of sub-contractors and/or service providers to give the Customer an opportunity to object to such change. The Customer must notify Risk Warden if it does not agree to a proposed change within 30 days of such written notice, specifying its grounds for such objection (acting reasonably). If Risk Warden receives such an objection, then Risk Warden may (at its option):
(a) cancel its plans to change the affected sub-processor(s) or service provider(s);
(b) offer an alternative which is acceptable to the Customer; or
(c) take corrective steps to remove the objection identified by the Customer to the Customer’s reasonable satisfaction, after which Risk Warden may proceed with appointing the relevant sub-processor(s) or service provider(s). If none of the above option resolves the objection, then without liability for either party:
(i) the Customer may terminate this Agreement by providing written notice of termination with immediate effect where such notice of termination is served within 60 days of Risk Warden informing the Customer of the change and such notice to include an explanation of the grounds for non-approval of the sub-contractors or service providers; or
(ii) Risk Warden may terminate this Agreement by providing written notice with immediate effect.
16.5 The Customer acknowledges that Risk Warden is reliant on the Customer for instructions as to the extent to which Risk Warden is entitled to use and process any Personal Data. Consequently, Risk Warden will not be liable for any claim brought by a Data Subject arising from any action or omission by Risk Warden to the extent that such action or omission resulted directly from the Customer’s instructions.
17.1 The Customer shall defend, indemnify and hold harmless Risk Warden against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Risk Warden Platform and/or Documentation.
17.2 The Customer shall defend, indemnify and hold harmless Risk Warden against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Risk Warden arising out of or in connection with any claim made against Risk Warden for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Customer Intellectual Property.
17.3 If any third party makes a claim, or notifies an intention to make a claim, against Risk Warden which may reasonably be considered likely to give rise to a liability under clause 17.1 or clause 17.2, Risk Warden shall:
(b) provide reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
17.4 The Customer shall defend, indemnify and hold harmless Risk Warden against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, any compensation paid to Data Subjects, demands, and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a supervisory authority) arising out of or in connection with a breach by the Customer of its obligations under clause 16.
17.5 Save in respect of any Customer Intellectual Property, Risk Warden shall defend the Customer against any claim that the Risk Warden Platform or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(b) the Customer provides reasonable co-operation to Risk Warden in the defence and settlement of such claim, at Risk Warden’s expense; and
17.6 In the defence or settlement of any claim, Risk Warden may procure the right for the Customer to continue using the Risk Warden Platform, replace or modify the Risk Warden Platform so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
17.7 In no event shall Risk Warden, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(b) the Customer’s use of the Risk Warden Platform or Documentation in a manner contrary to the instructions given to the Customer by Risk Warden; or
(c) the Customer’s use of the Risk Warden Platform or Documentation after notice of the alleged or actual infringement from Risk Warden or any appropriate authority.
17.8 The foregoing and clause 18.3(b) state the Customer’s sole and exclusive rights and remedies, and Risk Warden’s (including Risk Warden’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights or right of confidentiality.
(a) the Customer assumes sole responsibility for results obtained from the use of the Risk Warden Platform and the Documentation by the Customer, for conclusions drawn from such use and the undertaking of assessments. Risk Warden shall have no liability for any damage caused by errors or omissions in any information, instructions or documents provided to Risk Warden by the Customer or the Users in connection with the Risk Warden Platform, or any actions taken by Risk Warden at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Risk Warden Platform and the Documentation are provided to the Customer on an “as is” basis.
(c) any other liability which cannot be excluded or limited by law.
18.3 Subject to clause 18.1 and clause 18.2:
(a) Risk Warden shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, anticipated savings, wasted expenditure, loss of revenue or income, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Risk Warden’s total aggregate liability in contract (including in respect of the indemnity at clause 17.5), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of the total Subscription Fees paid or payable for the Subscriptions during the 12 months immediately preceding the date on which the claim arose provided that the limitation of liability in this clause 18 shall not apply to a Customer of Free Subscriptions. Should any liability arise in favour of the Customer or third party out of the Customer’s use of a Free Subscription, Risk Warden’s liability shall be limited to £100 (one hundred pounds).
19.1 Save in respect of Free Subscriptions, this Agreement shall, unless otherwise terminated as provided in this clause 19, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods each equivalent to the Initial Subscription Term (each a “Renewal Period”), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
20.1 Without prejudice to its rights under clause 21.1, Risk Warden may suspend access to the Risk Warden Platform to all or some of the Users within seven days, if:
(a) Risk Warden suspects that there has been any misuse of the Risk Warden Platform or breach of this Agreement or the Documentation;
20.2 Risk Warden will notify the Customer or the affected User as soon as possible after suspending the Risk Warden Platform.
20.3 Where the reason for the suspension is suspected misuse of the Risk Warden Platform or breach of this Agreement, without prejudice to its rights under clause 21.1, Risk Warden will take steps to investigate the issue and may restore or permanently suspend access at its discretion. If Risk Warden considers it appropriate to permanently suspend access to all Users, it will notify the Customer in writing and this Agreement will terminate immediately on service of such notice.
20.4 In relation to suspensions under clause 20.1(b), access to the Risk Warden Platform will be restored promptly after Risk Warden receives payment in full and cleared funds.
20.5 Subscription Fees shall remain payable during any period of suspension notwithstanding that the Customer or some of the Users may not have access to the Risk Warden Platform.
21. termination and consequences of termination
21.1 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 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 21.1(d) to clause 21.1(j) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
(m) Without affecting any other right or remedy available to it, Risk Warden may terminate this Agreement by giving the Customer 30 days’ written notice where Risk Warden reasonably believes the Customer is acting or has acted in a way that has or may negatively reflect on or affect Risk Warden, its prospects or its Customers.
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Risk Warden Platform and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) Risk Warden may destroy or otherwise dispose of any of the Customer Data and Report(s) in its possession unless Risk Warden receives, no later than 10 days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data and Report(s). Risk Warden shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Risk Warden in returning or disposing of Customer Data and Report(s); and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
21.3 Without prejudice to Risk Warden’s deletion of data pursuant to clause 21.2, on termination or expiry of this Agreement, Risk Warden may, at its sole option, provide a Free Subscription to the Customer. Risk Warden is not in any way obliged to offer such Free Subscription (including where this Agreement terminated due to the Customer’s breach).
21.4 The parties acknowledge that the Customer may prior to termination of this Agreement extract the Report(s) from the Risk Warden Platform and use, and continue to use following termination of this Agreement, the Report(s) in accordance with the terms of this Agreement which shall continue to apply in respect of such Report(s). Any use of the Report(s) after termination of this Agreements remains subject to the terms, conditions and disclaimers set out in this Agreement.
21.5 Any provision of this Agreement 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.
22.1 Force majeure. Risk Warden 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 Risk Warden or any other party), failure of a utility service or transport or telecommunications network or the internet, 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.
22.2 Variation. Except as set out in these Terms and Conditions, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22.4 Rights and remedies. Except as set out in these Terms and Conditions, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.5 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
(c) Nothing in this clause 22.6 shall limit or exclude any liability for fraud.
22.7 Assignment. The Customer shall not, without the prior written consent of Risk Warden, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Risk Warden may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
22.8 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22.9 Third party rights. This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
(a) Notices under this Agreement shall be in writing and sent to a party’s address or email address as set out in clause 22.10(b) below or such other address or email address as notified from time pursuant to this clause 22.10. Notices may be given, and shall be deemed received:
(i) by registered post: 2 Business Days after posting;
(ii) by commercial courier: 7 Business Days after posting;
(iii) by hand: on delivery; and
(iv) by email: at 9am on the first Business Day after transmission.
Email address: email@example.com
Address: as set out in the Confirmation of Subscription.
Email address: as set out in the Confirmation of Subscription.
(c) This clause does not apply to notices given in legal proceedings or arbitration.
(d) A notice given under this Agreement is not validly served if sent by fax.
22.11 Governing law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.12 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).