Subscription Licence Agreement Details
BIZTALK360 LICENCE AGREEMENT
Integration360 Limited, a limited company registered in England and Wales under number 06976607 whose registered office is at Planwell House, Lefa Business Park, 2nd Floor, Sidcup, Kent, DA14 5BH (“Integration360”, “Us”, “We” or “Our”)
IMPORTANT: Please read the terms of this Licence carefully. Your attention is drawn in particular to clause 11, under which We limit Our liability to You.
Microsoft BizTalk Server is a registered trademark of Microsoft Corporation.
This Licence governs the use of the Software. The term “Software” or BizTalk 360” means Our computer software referred to as “BizTalk360” (including online and electronic documentation the user documentation pertaining to the Software as supplied by Us (“Documentation”)), any associated media, and any updates or upgrades provided to You during the terms of this Licence. The features of Our Software that You will have access to is dependent on the nature of the subscription which You choose when You purchase Your subscription.
You agree to be bound by the terms of this Licence. BY SIGNING THIS LICENCE YOU ACCEPT ALL OF THE TERMS AND CONDITIONS OF THE LICENCE. IF YOU ARE ACCEPTING THE TERMS ON BEHALF OF ANOTHER PERSON OR LEGAL ENTITY, THEY REPRESENT AND WARRANT THAT THEY HAVE FULL LEGAL AUTHORITY TO ACCEPT ON BEHALF OF AND BIND THAT PERSON OR LEGAL ENTITY TO THE TERMS.
We are only willing to grant You this Licence if You obtained the Software from Us or Our authorized reseller. If You obtained the Software from any other source You may not install or use the Software.
Any earlier licence We may have granted to You for the use of earlier versions of the Software is superseded by the terms of this Licence.
0. GRANT OF Licence
We hereby grant to You a limited, personal, non-transferable and non-exclusive licence (which may not be sub-licensed) to install and use the Software only as authorised below. You are granted either: (1) a Trial Licence, or (2) a Standard Licence, or (3) an Enterprise Licence. Which licence applies (i.e., Trial, Standard or Enterprise Licence), and the duration of that licence, is specified in the quotation provided to You by Us (“Quote”). In all cases, the Software is licensed to You, not sold. In all cases, the licence is conditional upon Your payment of the sum agreed in respect of Your subscription to the Software (“Licence Fee”) by the due date.
1. TRIAL LICENCE
1.1 In consideration of the mutual rights and obligations set out in this Licence, We grant You the right to use the Software for a period of a maximum of three consecutive periods of 15 days (being a maximum of 45 days) from when it is installed by You or on Your behalf (“Trial Period”). During the Trial Period You can decide whether or not the Software meets Your requirements.
1.2 Before or upon expiry of the Trial Period:
1.2.1 If, in Your sole opinion, the Software has met Your requirements, and You wish to continue this Licence, You shall pay Us the Licence Fee(s) and this Licence agreement shall then remain in full force and effect.
1.2.2 If You decide that the Software does not meet Your requirements, or otherwise do not wish to enter into a paid up Licence, then You shall destroy the Software and all copies, in any form including partial copies or modifications of the Software received from Us or made in connection with this Licence and all documentation relating thereto. Any rights of Yours to use the Software shall cease.
1.3 During the Trial Period, You hereby agree that the Software is provided “AS IS” with no representation, guarantee or warranty of any kind as to its functionality, quality, performance, suitability or fitness for purpose. All other terms, conditions, representations and warranties expressed or implied whether by statute or otherwise are hereby expressly excluded. For the avoidance of doubt, unless and until You pay the relevant Licence Fees for the Software the Support Package specified in clause 5 shall not apply; and to the fullest extent permitted by law the Software is provided ‘as is’, without warranty of any kind (including any of the warranties in clause 8.1) or the benefit of the indemnity under clause 10.
2. COMMERCIAL STANDARD LICENCE (SUBSCRIPTION PRICING)
2.1 If the subscription to the Software is designated in Your Quote as the Commercial Standard version, You are granted a licence to the Standard version of the Software (as defined in the Quote) for the agreed subscription period specified in Your Quote and the number of BizTalk servers identified in the Quote, for the usage of the Software in one (1) single Microsoft BizTalk Server Standard edition environment.
2.2 Where the Software is designated in Your Quote as being for a Test Environment, it is licensed for use by a non- production environment, and the Software must not be used to support Your live business operations in any way.
2.3 You will initially be issued with a licence key which has a duration of 3 months, pending full settlement of the Licence Fee. Once the Licence Fee payment is fully paid, a licence key will be issued for the remaining period of Your subscription.
3. COMMERCIAL ENTERPRISE LICENCE (SUBSCRIPTION PRICING)
3.1 If the subscription to the Software is designated in Your Quote as the Commercial Enterprise version, You are granted a licence to the Enterprise version of the Software (as defined in the Quote) for the agreed subscription period specified in Your Quote and the number of BizTalk servers identified in the Quote, for the usage of the Software in one (1) single Microsoft BizTalk Server Enterprise edition environment.
3.2 Where the Software is designated in Your Quote as being for a Test Environment, it is licensed for use by a non-production environment, and the Software must not be used to support Your live business operations in any way.
3.3 You will initially be issued with a licence key which has a duration of 3 months, pending full settlement of the Licence Fee. Once the Licence Fee payment is fully paid, a licence key will be issued for the remaining period of Your subscription.
4. LICENCE RESTRICTIONS
4.1 You may not distribute copies of the Software to another party or electronically transfer the Software from one computer to another, if one of the computers belongs to another party.
4.2 You may not modify, adapt, translate, rent, lease, resell, distribute, or create derivative works based upon the Software or any part thereof.
4.3 You must comply with all applicable laws regarding use of the Software.
4.4 We may provide You with support services related to the Software (“Support Services”). Any supplemental Software code provided to You as part of the Support Services shall be considered part of the Software and subject to the terms and conditions of this Licence.
4.5 Due to various business requirements, there may be occasions where You need to delete an environment or even decommission a server. In this scenario, before deleting an environment/decommissioning the server, please keep in mind that You MUST deactivate the active licence(s) for the Software. Failing to deactivate the licence(s) will mean that You will not be entitled to use the same licence on a different Production or Non Production environment. You will see an error message as “There is already an active licence for this order number/licence code. Please deactivate the current license”.
4.6 In this case, when You reach out to Our Licensing team, the deactivation/activation will be done free of cost for the first time. However, if there is a request from the same company for the same problem, an administration fee of USD 100 will be payable on each subsequent occasion for Our BizTalk360 Admin team to perform the manual deactivation/activation process.
4.7 You may use the production copy of the Software solely to process Your own proprietary data.
4.8 The Software contains Our trade secrets of and You will not de-compile, disassemble, reverse engineer or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that such actions cannot be prohibited by applicable law because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by You during such activities:
4.8.1 is used only for the purpose of achieving inter-operability of the Software with another software program;
4.8.2 is not disclosed or communicated without Our prior written consent to any third party to whom it is not necessary to disclose or communicate it; and
4.8.3 is not used to create any software which is substantially similar to the Software.
4.9 Other than the rights of use expressly conferred upon You by this clause, You will have no further rights to use the Software or Documentation.
4.10 You will not copy, reproduce, modify, adapt, translate or add new features to the Software. You shall not permit disclosure of, access to, or use of the Software by any third party unless authorized in writing by Us.
4.11 Additional Licences are available in accordance with Our price list in effect from time to time. Please contact Us if You would like a Quote for further licences.
5. SUPPORT PACKAGE
5.1 We provide support services (including updates) for the Software product. The Support package fee is included in the Licence Fee. We provide support to users via Our dedicated ticketing system available by means of Our website. We provide support from 4.30am to 10pm UK time, on all days other than a Saturday, Sunday or public holiday in England when banks in London are open for business (“Support Business Hours”). Our support services are provided by staff both in the UK and offshore.
5.2 We shall acknowledge support requests from You within 4 hours (applicable only during our Support Business Hours as defined above). Where We consider it necessary to facilitate efficient communication, We may contact You by telephone or otherwise.
5.3 We shall have the right to withdraw services under the Support Package, without notice, if You are in default under any terms of this Licence.
5.4 We shall supply upgrades to the Software as they are commercially released.
5.5 We shall use reasonable endeavours to solve problems with the Software identified and notified to us by You by means of our dedicated ticketing system. Given the nature of Software, it is not possible for Us to warrant that We will be able to solve any particular problem in a given timescale, or at all. However, We undertake to keep You updated on progress and, where practical, provide an interim fix and/or workaround so that You can continue effective use of the Software.
5.6 We expect reasonable support from Your side to help diagnose the problem, examples of such activities involve providing the adequate log files, and if necessary access to Your environment either onsite or via secure remote access mechanisms. In the event that Integration360 agrees to provide support by means of access to Your environment, You agree to ensure to implement access control mechanisms to ensure that Integration360 is not permitted access to any personal data (as defined in applicable data protection laws).
5.7 You accept that, where a particular identified problem requires an update to the Software, the scheduling of any new releases and the functionality of those releases contain shall be under Our sole control.
5.8 We shall have no obligation to provide the support and maintenance services if the fault is not reported through Our dedicated ticketing system on Our website, or where faults arise from:
5.8.1 misuse, incorrect use of or damage to the Software; or
5.8.2 failure to maintain the necessary environmental conditions for use of the Software; or
5.8.3 use of the Software in combination with any equipment or software (other than BizTalk) not provided by Us, or any fault in any such equipment or software; or
5.8.4 Your failure to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Software; or
5.8.5 You altering or repairing the relevant Software without the written consent of Us; or
5.8.6 any breach of Your obligations under this Licence.
5.9 We shall have no obligation to provide the support and maintenance services and shall be entitled to terminate this Licence on one months’ written notice to You if You fail to acquire and install enhancements to the Software that We make available as part of its support and maintenance services such that the Software operated by You is more than three versions behind Our latest issued version.
6. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
6.1 In this Licence, “Intellectual Property Rights” means patents, copyright and related rights, trade marks, domain names, designs, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered, registrable or not and including all applications (or rights to apply) for, and renewals or extensions of, 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.
6.2 You acknowledge that:
6.2.1 all Intellectual Property Rights in or relating to the Software belong to Us exclusively;
6.2.2 except as expressly granted under this Licence, You have no rights in the Software.
6.3 You hereby agree to refrain from any action which would diminish Our Intellectual Property Rights in or relating to the Software or which would call them into question.
6.4 You agree not to remove or alter any trademarks, copyright notices or similar proprietary devices, including without limitation any electronic watermarks or other identifiers, that may be incorporated in the Software or any copy of the Software.
6.5 If any part of the Software is protected by technical protection measures (TPM) so that the Intellectual Property Rights, including copyright, in Our Software is not misappropriated, You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in Your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
6.6 If You become aware of any possible infringement or suspected infringement of Our Intellectual Property Rights in or relating to the Software by any third party involving You, then You shall notify us as soon as practicable. We and You shall consult together on an appropriate course of action but neither party shall be obliged to take any action in respect of any such infringement or suspected infringement.
7. CONFIDENTIALITY AND TRADE SECRETS
7.1 References to “Trade Secrets” in this clause means the Software, including all Intellectual Property therein, and all Our confidential and proprietary information disclosed or supplied to You in respect of the Software. You acknowledge that all Trade Secrets are owned by Us or We have the applicable rights of use in respect of such Trade Secrets. You further acknowledge that all Intellectual Property Rights subsisting in the Software, throughout the world belongs to Us, that rights in the Software are licensed (not sold) to You, and that You have no rights in, or to, the Software, other than the right to use them or have access to them in accordance with the terms of this Licence.
7.2 You will only use the Trade Secrets as permitted by this Licence, shall maintain the Trade Secrets in strict confidence and not disclose the Trade Secrets to any third party without Our prior written consent. You shall restrict the disclosure and dissemination of all Trade Secrets to Your employees who are bound to respect the confidentiality of such Trade Secrets. The provisions of this clause shall not apply to any Trade Secrets which are or become generally available to the public other than through disclosure by You in breach of this Licence. At the request of Us and in any event on termination of this Licence, You shall return to Us all documents and materials (and any copies) containing or reflecting the Trade Secrets. These obligations of confidentiality will survive termination of this Licence.
7.3 Without prejudice to clauses 7.1 and 7.2, each party agrees that it may use the other party’s confidential information only in the performance of its rights and obligations under this Licence and that during the term of this Licence and for a period of five years following termination of this Licence it shall not disclose the other party’s confidential information including all knowhow, financial, commercial, technical, tactical or strategic information of any kind except in accordance with this clause 7.
7.4 Each party may disclose the other party’s confidential information to those of its employees, officers, advisers, agents or representatives who need to know the other party’s confidential information in order to perform the disclosing party’s rights and obligations under this Licence provided that the disclosing party shall ensure that each of its employees, officers, advisers, agents or representatives to whom confidential information is disclosed is aware of its confidential nature and complies with this clause as if it were a party.
7.5 Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
8.1 We hereby warrant:
8.1.1 that We own the Software and/or have the right to grant a licence to You;
8.1.2 that in creating the Software, We have not knowingly infringed the intellectual property rights of third parties; and
8.1.3 that the Software shall operate substantially in accordance with its Documentation.
8.2 The sole remedy You shall have for any breach of the warranty in clause 8.1.3 above will be for Us to use reasonable efforts to correct, at its own expense, any defects in the Software that are brought to Our attention by You, in the context of the support and maintenance services it provides under this Licence.
8.3 You acknowledge that the Software and related materials is of such a complexity that there will be inherent defects and that therefore We can give no warranty that the Software is free from error or defect or that operation of the Software shall be uninterrupted.
8.4 Other than as provided for in clause 8.1 above, We do not offer any warranty related to the Software and/or the Support Package, either express or implied, including but not limited to implied warranties of fitness for purpose or satisfactory quality. The Software has been developed as a standard product for use and so We are unable to warrant that the Software will meet any particular user needs. You shall take full responsibility for ensuring that the Software is suitable for Your intended purposes and to facilitate Your checks of such suitability, We offer free Trial Licences for a maximum of 45 days period.
9. PAYMENT AND AUDIT
9.1 We will invoice You for the Software Licence Fee in accordance with Your licence type (Standard or Enterprise). The invoice will reflect the price agreed by You as specified in a quotation previously issued to You.
9.2 You will pay all invoices within thirty (30) days of receipt.
9.3 You will also be responsible for payment of all applicable taxes and other levies, including sales and use taxes, and this obligation will survive termination of this Licence.
9.4 We may charge You interest on the overdue amount at the rate of 4% per annum above Barclays Bank base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
9.5 You agree that We shall have the right (where We reasonably suspect that the terms of this Licence have not been complied with) upon 5 weeks’ prior notice to have (no more than once every 12 months) an independent third party auditor enter Your premises to audit any electronic media onto which the Software or any adaptation, modification or copy of the Software has been installed in order to verify compliance with this Licence. We shall instruct the auditor to avoid causing any unnecessary business disruption. Prior to exercising such right to audit We and/or the third party auditor shall if required by You enter into an appropriate and reasonable confidentiality agreement. We will pay the costs of any such examination or audit unless such audit shows that additional fees are payable by You or that You are otherwise in breach of this Licence, in which case You shall pay the costs of the examination or audit. For the avoidance of doubt, to the extent that You need to redact or withhold certain information from the auditor due to a legal or regulatory obligation, You shall not be considered to be in breach of this clause 9.5.
9.6 Where We reasonably conclude that additional Licence Fees are due from You under this Licence, We shall make a request in writing. You shall pay such additional Licence Fees within thirty (30) days of the date of the request. Without prejudice to Our other rights and remedies, non-payment of such fees shall, without prejudice to any other rights that We might have, give Us the right to terminate this Licence with immediate effect.
9.7 If you continue to renew your subscription to the Software without interruption for successive Extended Terms (as is defined under 12.1) We will refrain for the first four Extended Terms, from raising the Licence Fee from that paid by You in respect of the Initial Term. For the avoidance of doubt, this does not apply to any additional licences you purchase, which will be charged at our standard price in effect from time to time.
9.8 Where We reasonably conclude that You are otherwise in breach of this Licence, We shall at Our sole choice provide You with written notice of such breach and either (i) provide details of any remedial action required by You; or (ii) terminate this Licence.
9.9 All amounts due under this Licence shall be paid in full without any deduction or withholding other than as required by law. You shall not be entitled to assert any credit, set-off or counterclaim against Us in order to justify withholding payment of any such amount in whole or in part.
10.1 We will indemnify You in respect of any claims brought against You by a third party based on the claim that the Software infringes the Intellectual Property Rights of that third party, provided that You give Us prompt written notice of the claim, do not make any admission of liability agreement or compromise in relation to the claim, and provide all such assistance and documents at Our request and expense; We are permitted to have full control of the claim. If all or any part of the Software becomes, or in Our opinion is likely to become, the subject of such a claim, We may either modify the Software to make it non-infringing, reimburse all licence fees paid by You in relation to the Software that is alleged to infringe or terminate this Licence as it relates to the infringing portion of the Software. Our entire liability concerning Intellectual Property Rights infringement under this Licence shall be limited to the total of the licence fees paid by You to Us in respect of the Software in the preceding 12 months. We will not be liable for any infringement or claim based upon any modification of the Software developed by You, or use of the Software in combination with software or other technology not supplied or approved in advance by Us, or use of the Software contrary to this Licence or the Documentation.
11. LIMITATION AND EXCLUSION OF LIABILITY
11.1 The following provisions set out Our entire financial liability (including any liability for the acts or omissions of its employees, agents and sub-contractors) to You in respect of:
11.1.1 any breach of the Agreement;
11.1.2 any liability to You under the Agreement;
11.1.3 any use made by You of the Software, the Documentation, or any part of them; and
11.1.4 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Agreement.
11.2 All warranties, clauses and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement. In particular, We do not warrant that:
11.2.1 the Software will meet any or all of Your particular requirements because We have not assessed Your particular requirements;
11.2.2 the Software, will operate error free or uninterrupted; or
11.2.3 all programming errors in the Software can be found in order to be corrected.
11.3 Nothing in these clauses excludes Our liability:
11.3.1 for death or personal injury caused by Our negligence; or
11.3.2 for fraud or fraudulent misrepresentation; or
11.3.3 for any loss which may not lawfully be excluded.
11.4 Subject to clause 11.1 and 11.2, We shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
11.4.1 loss of profits; or
11.4.2 loss of business; or
11.4.3 depletion of goodwill or similar losses; or
11.4.4 loss of anticipated savings; or
11.4.5 loss of goods; or
11.4.6 loss of contract; or
11.4.7 loss of use; or
11.4.8 loss or corruption of data or information; or
11.4.9 loss resulting from Your use of map or geographical data, owned by You or any third party, in conjunction with the Software or otherwise; or
11.4.10 any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
11.5 Our total aggregate liability in contract (including under the indemnity in clause 10), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to 100% of the sums paid by You to Us in respect of the Software in the previous twelve months.
11.6 You acknowledge that the provisions of clauses 8, 10, and 11 are reasonable and reflected in the level of the Licence Fee, which would be higher without those provisions. In the event that any of the limitations or exemptions in this Licence shall be found to be void, they shall be construed in accordance with clause 14.
12. TERM AND TERMINATION
12.1 The Licence shall commence upon the date on which the licence keys for the Software are provided to You, and shall continue, unless terminated earlier in accordance with clause 12.2, until the expiry of the agreed subscription period as specified in Your Quote (Initial Term), when it shall terminate automatically without notice unless, at any time, the parties agree in writing that the term of the agreement shall be extended for a further period equivalent to the Initial Term (Extended Term).
12.2 Without affecting any other right or remedy available to it, either party may terminate this Licence (within 30 days of subscription/renewal period) on giving not less than 90 days’ written notice to the other party. In the event of such termination, We will refund You any sums paid by You in respect of the portion of Your then-current subscription period which remains unexpired at the date of termination.
12.3 Without prejudice to any other rights or remedies to which We may be entitled, We may terminate the Agreement without liability to You if:
12.3.1 You fail to pay any amount due under this Licence on the due date for payment and remains in default not less than seven days after being notified in writing to make that payment;
12.3.2 You commit a material breach of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of You being notified in writing of the breach; or
12.3.3 an order is made or a resolution is passed for Your winding, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of You; or
12.3.4 an order is made for the appointment of an administrator to manage the affairs, business and property of You, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of You, or notice of intention to appoint an administrator is given by You or its directors or by a qualifying floating charge holder (as defined in paragraph 15 of Schedule B1 to the Insolvency Act 1986); or
12.3.5 a receiver is appointed of any of Your assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of You, or if any other person takes possession of or sells Your assets; or
12.3.6 You make any arrangement or composition with its creditors, or make an application to a court of competent jurisdiction for the protection of its creditors in any way, or become bankrupt; or
12.3.7 You cease, or threaten to cease, to trade; or
12.3.8 You take or suffer any similar or analogous action in any jurisdiction in consequence of debt; or
12.3.9 You develop software that is competitive with the Software; or
12.3.10 You are acquired by or acquire an interest in a competitor of Us.
12.4 Upon termination of this Licence for any reason whatsoever, You must uninstall the Software and destroy all copies of the Software including all components of it in Your power, possession or control.
12.5 The termination of this Licence howsoever arising shall not affect the rights, duties and liabilities of either party accrued prior to termination. Following termination, no obligations or liabilities remain with Us.
12.6 On termination of this Licence, and except as under clause 12.5 above, the provisions of 6.1 (Ownership of Intellectual Property Rights), clause 7 (Confidentiality and Trade Secrets), clause 8 (Warranty), clause 11 (Limitation and Exclusion of Liability), clause 9.5 (Audit), and clauses 14 to 20 will remain in effect.
13. COMPLIANCE WITH APPLICABLE LAW
You acknowledge and agree that notwithstanding the fact that this Licence is governed by the laws of England You may be subject to additional laws in other jurisdictions with respect to Your use of the Software. You agree to comply with the laws of any jurisdiction that apply to the Software including without limitation any applicable export laws or regulations.
If any provision or part of any provision in this Licence shall be found by any court, body or authority of competent jurisdiction to be illegal, invalid or unenforceable for any reason then the parties shall meet promptly to discuss in good faith and agree an alternative provision or part provision that provides as closely as possible, the same commercial effect as the original. If this happens then the remaining provisions or part provisions are unaffected.
15. NO THIRD PARTY RIGHTS
We and You do not intend that any of the terms of this Licence will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it and all rights by virtue of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded.
16. ENTIRE AGREEMENT
The Licence contains all the terms which the parties have agreed in relation to the subject matter of this Licence and supersedes any prior written or oral agreements, representations (save for any fraudulent misrepresentation, fraud or concealment) or understandings between the parties in relation to such subject matter. Any changes to the Agreement or the Licence terms shall be through a written amendment signed by authorised signatories of the parties. Each party acknowledges that, in entering into this Licence, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Licence. Nothing in this clause shall limit or exclude any liability for fraud.
17. FORCE MAJEURE
We will not be responsible for, and its performance of obligations will automatically be postponed as a result of any circumstances beyond Our reasonable control, provided that We notify You of Our inability to perform with reasonable promptness and perform Our obligations hereunder as soon as circumstances permit. For the purposes of this clause, circumstances beyond Our reasonable control shall include without limitation 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 or storm.
18.1 Subject to Clause 18.1, this Licence is for the sole benefit of the parties and may not be assigned by either party without the prior written consent of the other, where such consent shall not be unreasonably withheld or delayed.
18.2 We may, at any time, assign any of Our obligations or any benefit arising under or out of this Licence to a member of Our group of companies. We may also sub-contract or delegate any of Our obligations under this Licence to a selected third party or agent.
18.3 If there is an assignment pursuant to clause 18.1:
18.3.1 You may discharge Your obligations under this Licence to Us until You receive written notice of the assignment;
18.3.2 the assignee may enforce this Licence as if it were a party to it, but We will remain liable for its obligations under this Licence;
18.3.3 the liability of You to any assignee cannot be greater than Your liability to Us.
19.1 Any notice given to a party under or in connection with this Licence shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
19.2 Any notice shall be deemed to have been received:
19.2.1 delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
19.2.2 if sent by UK pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
19.2.3 if sent by pre-paid airmail to an address outside the country from which it is sent, at 9.00 am on the fifth Business Days after posting;
19.2.4 if sent by reputable international overnight courier to an address outside the country from which it is sent, on signature of a delivery receipt or at the time the notice is left at the address.
19.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
20. GOVERNING LAW AND SETTLEMENT OF DISPUTES
20.1 The Licence (and any dispute or claim relating to it, or its formation, existence, construction, performance, validity or termination) will be governed by and construed in accordance with the laws of England.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Licence or its subject matter or formation.
20.3 In the event of any dispute arising between the parties in connection with this Licence which cannot be settled by negotiation, the parties shall in good faith, seek to resolve that dispute through mediation under the auspices of the ADR Group (UK). The mediator shall be agreed upon within 15 days of one party requesting mediation, failing which the mediator will be appointed by the then Chairman of ADR Group. Unless otherwise agreed the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days, or one of the parties refuses to participate in mediation, the dispute may be referred to litigation. No party may commence any court proceedings in relation to any dispute arising out of this Licence until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgement such action is necessary to prevent irreparable damage.