THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND iCLINICIAN GOVERNING YOUR USE OF THE iCLINICIAN PLATFORM, INCLUDING ANY APPLICABLE FREE TRIALS. PLEASE READ THIS AGREEMENT CAREFULLY.
BY SIGNING UP TO iCLINICIAN AND COMPLETING YOUR REGISTRATION, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREE TO ABIDE BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A BUSINESS OR OTHER LEGAL ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCEPT THIS AGREEMENT NOR MAY YOU USE THE iCLINICIAN PLATFORM OR RECEIVE SERVICES HEREUNDER.
This Agreement was last updated on 26th January 2018. It is effective between you and iCLINICIAN (NDMW Limited.) as of the date you accepted this Agreement (the “Effective Date”).
In addition to the terms defined in the body of the agreement, the following terms have the following meanings:
“Affiliates” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of interests of the subject entity.
“The Company” means NDMW Limited T/A iCLINICIAN.
“End Users” means individuals eighteen years or older who are authorised to access and use the iCLINICIAN Platform under Your Subscription. End Users may include but are not limited to You and Your employees, consultants, contractors, and agents.
“iCLINICIAN Platform” means the CRM application provided by The Company and the underlying servers and software used to provide such application (collectively the “System”).
“Deliverable” means any software, applications, documentation, or other materials expressly required to be delivered to You.
“Fees” means Subscription Fees, Purchase Fees, Services Fees and any other amounts due to The Company and payable by You under this Agreement.
“FileMaker” means to the software package used to build the iCLINICIAN Platform and developed by FileMaker Inc., an Apple Subsidiary. FileMaker Go is the iPhone/iPad app, FileMaker Pro the PC/Mac software programme and FileMaker Server, the server software that is used to host the iCLINICIAN Platform.
“GoCardless” means the online Direct Debit collection service used by The Company to collect Fees.
“Order Forms” means the ordering documents that are entered into by You and The Company from time to time, in the form provided by The Company. Order Forms are deemed incorporated herein.
“Residuals” means ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information) The Company has developed or is developing in connection with the business of creating and offering the iCLINICIAN Platform. Residuals do not include confidential information or data of or relating to Customer.
“Purchase” means the outright purchase of the iCLINICIAN Platform by You from The Company under this Agreement.
“SagePay” means the online Payment Merchant used by The Company to collect Fees.
“Services” means the professional services provided to you by The Company under this Agreement.
“Service Fees” means the fees set forth in an SOW under this Agreement.
“Statement of Work” or “SOW” means a statement of work to be performed by The Company that references this Agreement and has been executed by the parties hereto. Each Statement of Work shall be deemed incorporated herein.
“Subscription” means the right to access the iCLINICIAN Platform during the Term.
“Subscription Fees” means the fees for a Subscription to each version of the iCLINICIAN Platform are set forth on the iCLINICIAN website.
“iCLINICIAN Cloud” means the Amazon Web Services (AWS) virtual cloud server used by The Company for hosting iCLINICIAN.
“Your Data” means any personally identifiable data uploaded by You to the iCLINICIAN Platform that would typically be provided in the normal course of using the iCLINICIAN Platform, as well as all information generated by the End Users during the use of the iCLINICIAN Platform. Your Data includes, without limitation, any financial information of any nature or any other personally identifiable information that could be legally considered private or sensitive.
So basically we mean:
Just a couple of definitions we’ll use later in the document.
2. Provision of the Platform
Registration. You must be eighteen years or older to register, and must provide complete and accurate information during the registration process, including valid UK bank details that You are authorised to use if You are registering for a paid Subscription via GoCardless.
Free Trial. iCLINICIAN may make all or part of the iCLINICIAN Platform available to You and Your End Users on a trial basis free of charge (the “Free Trial”). The Free Trial shall begin when You submit a registration for the same to The Company, and shall terminate on the earlier of (i) the Free Trial expiration date as specified by The Company upon receiving your registration, or (ii) the date You execute an Order Form for a Subscription or Purchase under this Agreement.
NOTWITHSTANDING SECTION 10, ACCESS TO THE iCLINICIAN PLATFORM IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND DURING THE FREE TRIAL. YOUR DATA ENTERED AND ANY SPECIFIC SETTINGS OR PREFERENCES YOU OR YOUR END USERS MAKE DURING THE FREE TRIAL WILL BE PERMANENTLY DELETED UNLESS YOU PURCHASE A SUBSCRIPTION PRIOR TO THE EXPIRATION OF THE FREE TRIAL.
Subscription. The Company shall make the iCLINICIAN Platform available to You and Your End Users pursuant to this Agreement and all Order Forms during the Term. You agree that your purchase of the Subscription or Purchase is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by The Company with respect to future functionality or features.
Support. Support via email and phone is available in connection with a paid Subscription.
Minimum Term. The minimum term for iCLINICIAN Premium is six (6) months and by signing The Agreement You are confirming Your commitment to this term.
So basically we mean:
Our premium accounts may include a free trial if requested. If the trial ends and you didn’t subscribe, we may delete your data. The iCLINICIAN platform is provided “as is” and support is guaranteed only to premium accounts. The minimum term is six (6) months.
3. Application-Specific Requirements
iCLINICIAN Uses FileMaker. The iCLINICIAN Platform is a FileMaker solution and depending on its configuration uses one of more FileMaker elements.
iCLINICIAN Lite. iCLINICIAN Lite is a free to use, single user FileMaker iOS SDK Apple Application which runs locally on Your iPad. All Data is stored locally on the iPad and as such is not accessible The Company. iCLINICIAN Lite is downloaded by You to your iPad from The Company’s server. You set up iCLINICIAN Lite by completing the setup process. You are responsible for backing up your Data to ensure that you have a backup of all Data in the event of data loss. iCLINICIAN Lite is a restricted version of iCLINICIAN Solo limited to five treatment records.
iCLINICIAN Solo. iCLINICIAN Solo is a single user FileMaker iOS SDK Apple Application which runs locally on Your iPad. All Data is stored locally on the iPad and as such is not accessible The Company. iCLINICIAN Solo is downloaded by You to your iPad from The Company’s server. You set up iCLINICIAN Solo by completing the setup process. You are responsible for backing up your Data to ensure that you have a backup of all Data in the event of data loss.
iCLINICIAN Premium. iCLINICIAN Premium is our cloud based solution which has the ability to support multiple users It is a hosted FileMaker solution which runs on the iCLINICIAN Cloud. Hosted Data is backed up by The Company on a daily, weekly and month basis. As iCLINICIAN Premium is a hosted solution an 3G/4G or wifi internet connection is required during use. Each user requires their own iCLINICIAN user account. User accounts cannot to be shared by multiple users.
So basically we mean:
If you use iCLINICIAN Lite or iCLINICIAN Solo then you are responsible for backing up your data. iCLINICIAN Premium users each require their own user account and the data file is securely backed up by The Company.
4. Conduct and Use Guidelines
Ownership of Your Data. You retain all right, title and interest in and to all Your Data. The Company shall not access the Your Data except to respond to service or technical problems, or at Your request.
Collection of Your Data. You are responsible for all activities that occur in Your account and for Your End User’s compliance with this Agreement. You shall, and shall cause your End Users to, comply with all local, national or foreign law, treaty, regulation or convention applicable to You in connection with the use of the iCLINICIAN Platform, including without restriction the EU Data Protection Directive and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws. You are responsible for the collection, legality, protection and use of Your Data that is stored on the System or used in connection with the iCLINICIAN Platform. The Company will not be responsible for any loss or disclosure of Your Data (or any damages related thereto) resulting from You or Your End Users’ failure to adequately secure their user identification and passwords.
Acceptable Use. You and Your End Users shall use the iCLINICIAN Platform for Your internal business purposes as contemplated by this Agreement and shall not: (i) tamper with the security of the System or tamper with other customer accounts of iCLINICIAN, (ii) access data on the System not intended for You, (iii) log into a server or account on the System that You are not authorised to access, (iv) attempt to probe, scan or test the vulnerability of any System or to breach the security or authentication measures without proper authorization; (v) render any part of the System unusable; (vi) lease, distribute, license, sell or otherwise commercially exploit the iCLINICIAN Platform or make the iCLINICIAN Platform available to a third party other than as contemplated in this Agreement; or (vii) provide to third parties any evaluation or Free Trial version of the iCLINICIAN Platform without iCLINICIAN’s prior written consent.
Communications Responsibilities. You shall be responsible for the content of all communications sent through the iCLINICIAN Platform, and shall comply with all applicable laws and regulations in Your use of the iCLINICIAN Platform. You agree that You will not use the iCLINICIAN Platform to communicate any message or material that (i) is libellous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of a third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense under any applicable law or regulation. You further agree that You shall not use the iCLINICIAN Platform for the purpose of making emergency calls or providing emergency services.
Breach of Guidelines. In the event You or Your End Users materially breach this Section 4, The Company will endeavour to provide You with the opportunity to remove or disable access to the offending material or content, provided, however, that The Company reserves the right to immediately remove, in its sole discretion, any content which is unlawful or offensive without prior notice to You. In addition to any other rights and remedies under the Agreement and in law, The Company reserves the right to immediately suspend access to the iCLINICIAN Platform if such breach, in The Company’s opinion, is an imminent threat to the System, other customer accounts, or constitutes abusive or threatening behaviour.
So basically we mean:
1. You are the sole owner of your data! We will access it only in order to help you solve a technical problem or if you request us to. You must comply with all the data laws applicable to the type of data you store in the iCLINICIAN Platform. In the case you fail to secure your access passwords, The Company will not be responsible for any data breach or data loss.
2. In the case you use iCLINICIAN SMS or any email integration, you will be responsible for the content of all communications. You also must comply with all applicable laws and regulations related to such communication methods.
3. If you breach those guidelines, and we conclude that by doing so you are breaking the law or might affect other customers, we will immediately suspend your account until the issue is resolved.
5. Third Party Providers
Acquisition of Non-iCLINICIAN Products and Services. You acknowledge that third party products or services may be made available to You from time to time by The Company or third parties, and that Your decision to acquire any such products or services is solely between You and the applicable third party provider. Unless specifically set forth on an Order Form, The Company does not warrant or support third party products or services.
Third Party Applications and Your Data. You further acknowledge that if You acquire third party applications for use with Your Subscription, The Company may allow the providers of such applications to access Your Data in order to allow such applications to interoperate with the iCLINICIAN Platform. The Company shall not be responsible or liable for any disclosure, modification or deletion of Your Data resulting from any such access by third party application providers.
So basically we mean:
If you use iCLINICIAN with any other 3rd party integrated product or service, we will not support or warrant that product or service. Also, if by integrating with a 3rd party product, you choose to provide it with access to your data, we will not be liable for any disclosure or breach of data resulting granting such access.
Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing as confidential as well as Your Data. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party.
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
Protection. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information).
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
So basically we mean:
We keep your confidential information secret. You keep our confidential information secret.
7. Fees and Taxes
Fees. Fees are set forth on the iCLINICIAN website. Use of iCLINICIAN SMS is subject to additional charges, including applicable telecommunications service rates. Except as otherwise provided in the Order Forms, all Fees are quoted in GBP; are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and Subscription Fees are non-refundable. The Company may modify any Subscription Fees on thirty (30) days’ email notice. In the event you upgrade your Subscription, the Subscription Fees applicable to Your new version of the iCLINICIAN Platform will take effect immediately and be prorated for the rest of the month if paying monthly, and if prepaid for annual subscription, the proration will happen until end of term. If paying via payment method other than GoCardless then we will charge you at month end for remainder of your term. If you downgrade, no adjustment will be made until your next billing term. A valid United Kingdom bank account that You have the right to use is required for any paid Subscription, unless another form of payment was agreed upon in writing between the parties. Unless otherwise agreed by the parties, paid Subscriptions will be billed in advance on a monthly or annual basis, starting on the Effective Date.
Services Fees. You shall pay to The Company all of the fees for Services provided. All fees are quoted in GBP currency; payment obligations are non-cancellable; and Services Fees are non-refundable and shall not be subject to setoff or other reduction.
Overdue Payments. Any payment not received by the due date shall accrue interest at the lower of 1.5% or the maximum rate permitted by law on the outstanding balance per month (except with respect to charges then under reasonable and good faith dispute) from the date such payment is due until the date paid.
Suspension of Platform Access and Service. If Your account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), The Company reserves the right to suspend Your access to the iCLINICIAN Platform and The Company’s performance of Services under any applicable SOWs, without liability to The Company, until Your account is paid in full.
Taxes. You are responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to Your purchases hereunder, other than The Company’s income taxes. If The Company pays any such taxes on Your behalf, You agree to reimburse The Company for such payment unless You provide The Company with a valid exemption certificate authorised by the appropriate taxing authority.
Expenses. If The Company is required to incur in any additional costs or expenses in providing You Services or support under this Agreement, The Company shall first obtain Your written approval.
So basically we mean:
iCLINICIAN Premium is a subscription service. The preferred method of payment for iCLINICIAN is with GoCardless. If your account is past due, we have the right to suspend it.
8. Proprietary Rights
Proprietary Rights in the iCLINICIAN Platform. The iCLINICIAN Platform and all intellectual property rights therein and all intellectual property rights relating to the provision of support are owned or licensed by The Company. Except for the Subscription granted hereunder, nothing in this Agreement gives You any right, title or interest to the iCLINICIAN Platform or related support.
iCLINICIAN Platform Restrictions. You shall not: (i) modify, translate, or create derivative works based on the iCLINICIAN Platform; (ii) create any link to the iCLINICIAN Platform or frame or mirror any content contained or accessible from the iCLINICIAN Platform, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the iCLINICIAN Platform; (iv) or access the iCLINICIAN Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the iCLINICIAN Platform.
Work Product. All work product produced as part of the Services and all intellectual property in and to such work product, other than the Residuals or iCLINICIAN Platform itself, shall be owned by You, are deemed “work made for hire” to the extent applicable, and are hereby assigned, sold and transferred to You.
Residuals. You acknowledge that The Company is in the business of creating and offering the iCLINICIAN Platform. In connection with such business, The Company has developed and continues to develop the Residuals. To the extent Residuals are made available to You or required for the functioning or maintenance of a Deliverable, (i) You shall have a perpetual, irrevocable right to use, copy, modify, and create derivative works of such materials as necessary to support the applicable Deliverable, and (ii) nothing shall restrict iCLINICIAN’s ongoing right to use any such Residuals.
So basically we mean:
We’re working hard to build the next generation of business software. Don’t copy it or try to reverse engineer it. The product and its intellectual property rights are either licensed or owned by us.
9. Term and Termination
Term of the Agreement. This Agreement commences on the Effective Date and continues until the expiration or termination of your Free Trial or Subscription (as applicable) (the “Term”).
Termination by You. You may cancel Your Subscription for iCLINICIAN Premium and terminate this Agreement at any time by providing 60-days notice to The Company via email. Upon cancelling your account, The Company will allow a 60-day grace period in which you will be able to reactivate your account and restore your data. In the case you wish your data to be completely and permanently removed from The Company’s application servers, please send an email to our support team at firstname.lastname@example.org.
Termination for Cause. This Agreement may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) immediately in the event of a material breach of Section 4 hereof.
Surviving provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 7 to 14.
So basically we mean:
This agreement is in effect as long as you use and pay for iCLINICIAN. You can cancel your account or subscription at any time.
10. Warranties and Disclaimers
Authority. Each party represents and warrants that it has the legal power to enter into this Agreement.
Functionality Warranty. The Company warrants that the iCLINICIAN Platform will operate in substantial conformity with the then current version of the applicable documentation provided by The Company.
Security Warranty. The Company or its licensors or hosting providers have implemented commercially reasonable efforts to ensure that Your Data will be maintained accurately and safeguarded as well as technical and physical controls to protect Your Data against destruction, loss, alteration, unauthorised disclosure to third parties or unauthorised access by employees or contractors employed by The Company, whether by accident or otherwise.
Services Warranty. The Company warrants that it will perform the Services related to each Deliverable in a competent and workmanlike manner and in accordance with applicable industry standards for similar types of services.
Remedy. The Company shall, as Your sole and exclusive remedy and The Company’s sole and exclusive liability for a breach of the warranties set forth in Section 11 hereunder, (i) use commercially reasonable efforts at its own expense to cause the iCLINICIAN Platform to comply with the warranties in
Section 11(b) and (c), and reperform any portion of the Services that are not provided in compliance with the warranty in Section 11(d), provided in each case that such noncompliance is promptly brought to The Company’s attention in writing in reasonable detail. No warranty claim may be made more than thirty (30) days after performance or acceptance, as applicable.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE iCLINICIAN PLATFORM IS PROVIDED “AS-IS,” AND THE COMPANY DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. The Company does not warrant that the functions contained in the iCLINICIAN Platform will meet Your requirements or that the operation of the iCLINICIAN Platform will be uninterrupted or error-free. Further, The Company does not warrant that all errors in the iCLINICIAN Platform can or will be corrected. The Company will not be responsible for any loss of Your Data or inability to perform certain tasks resulting from Your decision to downgrade your Subscription.
So basically we mean:
iCLINICIAN performance will be at least as good as industry standards (but in reality – will be much better). We use high quality 3rd party hosting providers and we make sure they put in the right effort to protect iCLINICIAN and your data.
11. Limitation of Liability
Limitation of Liability. NEITHER YOU NOR THE COMPANY, NOR OUR RESPECTIVE SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, IN EXCESS OF THE TOTAL FEES AND CHARGES PAID BY YOU FOR YOUR SUBSCRIPTION DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Exclusion of Consequential and Related Damages. YOU AND THE COMPANY AGREE THAT THE CONSIDERATION PAID UNDER THIS AGREEMENT DOES NOT INCLUDE CONSIDERATION FOR THE ASSUMPTION OF THE RISK OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE.
No action against either party arising out of this Agreement may be brought by the other party more than six (6) months after the cause of action has arisen.
So basically we mean:
Our liability is limited to fees you paid for iCLINICIAN in the prior 6 months.
12. Mutual Indemnification
Indemnification by The Company. The Company shall indemnify and hold You harmless against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against You by a third party alleging that the use of the iCLINICIAN Platform, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if The Company reasonably believes that Your use of any portion of the iCLINICIAN Platform and/or related support is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then The Company may, at its expense: (i) procure for You the right to continue using the iCLINICIAN Platform or support; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the functional capabilities of the iCLINICIAN Platform and/or support as set out herein. The Company shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the iCLINICIAN Platform or support with other equipment or software not supplied by iCLINICIAN or in a manner not consistent with The Company’s instructions.
Indemnification by You. You agree to indemnify and hold The Company harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against The Company by a third party arising from or relating to (i) Your breach of Section 4, or (ii) Your use of Your Data or the iCLINICIAN Platform.
Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defence of such Claim.
So basically we mean:
We’ll protect each other against certain third party claims.
13. General Provisions
Entire Agreement. This Agreement constitutes the entire agreement and sets forth the entire understanding between You and The Company with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto.
Marketing. Neither party may issue press releases to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendor in accordance with the other party’s standard guidelines.
Relationship of You and The Company. You and The Company are independent contractors. This Agreement does not create a joint venture or partnership between You and The Company; neither party is by virtue of this Agreement authorised as an agent, employee or representative of the other party.
Modifications and Waiver. The Company may revise this Agreement from time to time. Notice of any material changes to the Agreement will be provided via email. Any waiver of any right or remedy under this Agreement by The Company must be in writing and signed by The Company. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
Assignment. This Agreement and any rights or obligations hereunder, shall not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party except that either party may assign or transfer this Agreement upon a change of control of a party or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by the terms of this Agreement.
Governing Law. The rights and obligations of the parties and all interpretations and performance of this Agreement shall be governed by and construed in accordance with the laws of the United Kingdom, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally consent to the exclusive jurisdiction of the courts of the United Kingdom, and all courts competent to hear appeals therefrom. THE PARTIES WAIVE ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Notices. Any notices under this Agreement shall be in writing and shall be deemed to have been delivered: (i) upon personal delivery; (ii) the fifth business day after mailing; (iii) the third business day after sending by confirmed facsimile; or (iv) the third business day after sending by email. Notices to The Company shall be addressed as follows:
ATTN: Neil Manchester
80 Allerton Road
Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.
Force Majeure. Neither party to this Agreement shall be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.