These ESPROFILER Standard Subscription Terms and Conditions ("Terms and Conditions") together with an applicable Order Form govern the use of the cloud platform and services provided by ESPROFILER Limited ("ESPROFILER").
By submitting an Order Form, executing an Order Form or otherwise accessing or using the Services, the entity using the Services ("Customer") consents to be bound by the Agreement, including all terms incorporated by reference.
ESPROFILER permits Customer to access and use the Services only in accordance with the terms of this Agreement.
Agreed terms
Interpretation
The definitions and rules of interpretation in this clause apply in this agreement.
Agreement
The agreement between the Customer and ESPROFILER comprising the applicable Order Form, these Terms and Conditions and as applicable the Documentation.
Authorised Users
Those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
Business Day
A day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Capability Exchange
ESPROFILER's database containing information about the vendors of IT security products and the features and associated capabilities of such products, as amended from time to time by ESPROFILER and including any such information collected from the Customer pursuant to this Agreement.
Confidential Information
Information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.
Contract Year
A 12 month period commencing on the Effective Date or any anniversary of it.
Customer Data
The data inputted by the Customer, Authorised Users, or ESPROFILER on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services but excluding ESPROFILER Data.
Customer Vendor Information
Information about the vendors of IT security products used by the Customer and the features and associated capabilities of such IT security products, which ESPROFILER shall manipulate in such a way that such information cannot be identified as originating or deriving directly from the information made available by the Customer.
Documentation
The document made available to the Customer by ESPROFILER online via https://docs.esprofiler.com/ or such other web address notified by ESPROFILER to the Customer from time to time or as otherwise notified in writing by ESPROFILER which sets out a description of the Services and the user instructions for the Services.
Effective Date
The date of this agreement.
ESPROFILER
ESPROFILER Limited (Company Number: 12711421) whose registered address is at: Midway House Herrick Way, Staverton, Cheltenham, England, GL51 6TQ.
ESPROFILER Data
Means all data contained within the Capability Exchange, including any Customer Vendor Information.
Initial Subscription Term
The initial term of this agreement as set out in each Order Form, which in the absence of any statement in the Order Form shall be 12 months from Effective Date.
Normal Business Hours
8.00 am to 6.00 pm local UK time, each Business Day.
Order Form
The Customer's order for the supply of Software and Services and related terms and conditions, executed by the parties.
Renewal Period
The period described in clause 13.1.
Services
The subscription services including access to the Software and Capability Exchange, hosting and support services (as applicable) provided by ESProfiler to the Customer under this agreement, as more particularly described in the Documentation.
Software
The online software applications provided by ESPROFILER as part of the Services.
Subscription Fees
The subscription fees payable annually in advance by the Customer to ESPROFILER, as set out in each Order Form.
Subscription Term
Has the meaning given in clause 13.1 below (being the Initial Subscription Term together with any subsequent Renewal Periods).
Terms and Conditions
These ESPROFILER Standard Subscription Terms and Conditions.
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.
Vulnerability
A weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
A reference to writing or written excludes fax but not email.
User licence
Subject to the restrictions set out in this clause 2, the Order Form and the other terms and conditions of this agreement, ESProfiler hereby grants to the Customer a non-exclusive, non-transferable right and licence, to use the Services and the Documentation during the Subscription Term solely for the Customer's internal business operations.
In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for their use of the Services and Documentation, that each Authorised User shall keep their password confidential.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
facilitates illegal activity;
depicts sexually explicit images;
promotes unlawful violence;
is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
is otherwise illegal or causes damage or injury to any person or property;
and ESPROFILER 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.
The Customer shall not:
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:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software, Services and/or Documentation (as applicable) in any form or media or by any means; or
attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software or the Services; or
access all or any part of the Software, Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
use the Software, Services and/or Documentation to provide services to third parties; or
subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software, Services and/or Documentation available to any third party except the Authorised Users, or
attempt to obtain, or assist third parties in obtaining, access to the Software, Services and/or Documentation, other than as provided under this clause 2; or
introduce or permit the introduction of, any Virus or Vulnerability into the Software, Services or ESPROFILER's network and information systems.
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify ESPROFILER.
The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
Services
ESProfiler shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
Data protection
The parties acknowledge and agree that neither party intends to process any "personal data" on behalf of the other as a "processor" pursuant to this Agreement, as those terms are defined by UK data protection laws.
Third party providers
The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.
ESPROFILER makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.
Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not ESPROFILER.
ESPROFILER recommends that the Customer refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website.
ESPROFILER does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
ESPROFILER obligations
ESPROFILER shall perform the Services substantially in accordance with the Documentation and with reasonable skill and care.
ESPROFILER's obligations at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to ESPROFILER's instructions, or modification or alteration of the Services by any party other than ESPROFILER or ESPROFILER's duly authorised contractors or agents.
If the Services do not conform with the terms of clause 6.1, ESPROFILER will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly. Such correction constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1.
ESPROFILER:
does not warrant that:
the Customer's use of the Services will be uninterrupted or error-free; or
that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements.
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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
the acts or omissions of any third party hosting or other provider that ESPROFILER engages in connection with the Services. In the event of any default by any such third party provider, ESProfiler shall use reasonable endeavours to procure that any such third party provider remedies any such default in line with such third party provider's standard terms and conditions.
This agreement shall not prevent ESPROFILER from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
ESPROFILER warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
ESProfiler performs hourly snapshots of our customer environments which are retained for no more than seven days.
In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against ESPROFILER shall be for ESPROFILER to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest snap shot of such Customer Data maintained by ESPROFILER providing it is within the seven day window.
ESPROFILER shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
Customer's obligations
The Customer shall:
provide ESPROFILER with:
all necessary co-operation in relation to this agreement; and
all necessary access to such information as may be required by ESPROFILER;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
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, ESPROFILER may adjust any agreed timetable or delivery schedule as reasonably necessary;
ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
obtain and shall maintain all necessary licences, consents, and permissions necessary for ESPROFILER, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
ensure that its network and systems comply with the relevant specifications provided by ESPROFILER from time to time; and
be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to ESPROFILER'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.
The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
Charges and payment
The Customer shall pay the Subscription Fees to ESPROFILER for the Services and Documentation annually in advance and in accordance with this clause 8 and each Order Form.
If ESPROFILER has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of ESPROFILER:
ESPROFILER may, on no less than 5 Business Days' notice to the Customer and without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and ESPROFILER shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of ESPROFILER's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
All amounts and fees stated or referred to in this agreement:
shall be payable in pounds sterling;
are, subject to clause 8.3.(b), non-cancellable and non-refundable;
are exclusive of value added tax, which shall be added to ESPROFILER's invoice(s) at the appropriate rate.
ESPROFILER shall be entitled to increase the Subscription Fees at the start of each Contract Year in line with the percentage increase in the Retail Price Index All Items (as published by the Office of National Statistics from time to time, or failing such publication, such other index as the parties may agree most closely resembles such index) in the pre-ceding 12-month period.
The first such increase shall take effect at the beginning of the second Contract Year and shall be based on the latest available figure for the percentage increase in the Retail Price Index All Items at the beginning of the last month of the previous Contract Year.
Proprietary rights
The Customer acknowledges and agrees that ESPROFILER and/or its licensors own all intellectual property rights in the Software, Services and the Documentation.
Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Documentation.
ESPROFILER confirms that it has all the rights in relation to the Software, Services 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.
The Customer hereby gives its unconditional, irrevocable and perpetual authority to ESPROFILER to incorporate the Customer Vendor Information into, and use it in connection with, the Capability Exchange.
Confidentiality
Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party's Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:
the existence and terms of this agreement or any agreement entered into in connection with this agreement;
any information that would be regarded as confidential by a reasonable business person relating to:
the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs);
any information developed by the parties in the course of carrying out this agreement and the parties agree that:
details of the Services, the results of any performance tests of the Services, the ESPROFILER Data and any data held on the Capability Exchange shall constitute ESPROFILER's Confidential Information; and
Customer Data shall constitute Customer Confidential Information.
Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.
The provisions of this clause shall not apply to any Confidential Information that:
is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
the parties agree in writing is not confidential or may be disclosed; or
is developed by or for the receiving party independently of the information disclosed by the disclosing party.
Each party shall keep the other party's Confidential Information secret and confidential and shall not:
use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.
A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause.
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 including 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 10.5, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in this agreement are granted to the other party, or to be implied from this agreement.
On termination or expiry of this agreement, each party shall:
destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information;
erase all the other party's Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party's Confidential Information to the extent required by law or any applicable governmental or regulatory authority.
Except as expressly stated in this agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
The above provisions of this clause 10 shall continue to apply after termination or expiry of this agreement.
Indemnity
The Customer shall defend, indemnify and hold harmless ESProfiler 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 Software, Services and/or Documentation, provided that:
the Customer is given prompt notice of any such claim;
ESPROFILER provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer's expense; and
the Customer is given sole authority to defend or settle the claim.
ESPROFILER shall defend the Customer, its officers, directors and employees against any claim that the Customer's use of the Services or Documentation in accordance with this agreement 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:
ESPROFILER is given prompt notice of any such claim;
the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to ESPROFILER in the defence and settlement of such claim, at ESPROFILER's expense; and
ESPROFILER is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, ESPROFILER may procure the right for the Customer to continue using the Services, replace or modify the Services 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.
In no event shall ESPROFILER, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a modification of the Services or Documentation by anyone other than ESPROFILER; or
the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by ESPROFILER; or
the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from ESPROFILER or any appropriate authority; or
the Customer's breach of this agreement.
The foregoing and clause 12.3(b) states the Customer's sole and exclusive rights and remedies, and ESPROFILER's (including ESPROFILER's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
Limitation of liability
Except as expressly and specifically provided in this agreement:
the Customer assumes sole responsibility for results obtained from the use of the Software, Services and the Documentation by the Customer, and for conclusions drawn from such use. ESPROFILER shall have no liability for any damage caused by errors or omissions in any Customer Data, information, instructions or scripts provided to ESPROFILER by the Customer in connection with the Services, or any actions taken by ESPROFILER at the Customer's direction;
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
the Services and the Documentation are provided to the Customer on an "as is" basis.
Nothing in this agreement excludes the liability of ESPROFILER:
for death or personal injury caused by ESPROFILER's negligence; or
for fraud or fraudulent misrepresentation.
Subject to clause 12.1 and clause 12.2:
ESProfiler shall have no liability for any:
loss of profits,
loss of business,
wasted expenditure,
depletion of goodwill and/or similar losses,
loss or corruption of data or information, or
any special, indirect or consequential loss, costs, damages, charges or expenses; and
ESPROFILER total aggregate liability to the Customer (including in respect of the indemnity at clause 11.2), in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
If breaches committed in more than one contract year give rise to a single claim or a series of connected claims, ESPROFILER's total liability for those claims shall not exceed the single highest annual cap for those contract years.
In clause 12.3(b):
The cap is £100,000.
A contract year means a 12 month period commencing on the Effective Date or any anniversary of it.
References to liability in this clause 12 include every kind of liability arising under or in connection with this agreement including but not limited to liability in contract, tort (including negligence), indemnity, misrepresentation, restitution or otherwise.
Nothing in this agreement excludes the liability of the Customer for any breach, infringement or misappropriation of ESPROFILER's Intellectual Property Rights.
Term and termination
This agreement shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
either party notifies the other party of termination, in writing, at least 60 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
otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
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:
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 14 days after being notified in writing to make such payment;
the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On termination of this agreement for any reason:
all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the Services, the Capability Exchange and/or the Documentation;
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;
ESPROFILER may destroy or otherwise dispose of any of the Customer Data in its possession unless ESPROFILER receives, no later than thirty 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. ESPROFILER 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 ESPROFILER in returning or disposing of Customer Data; and
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.
Force majeure
Neither party shall be in breach of this agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control.
The time for performance of such obligations shall be extended accordingly.
If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving written notice to the affected party.
Conflict
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules, the provisions in the main body of this agreement shall prevail.
Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
Rights and remedies
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
Severance
If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
If any provision or part-provision of this agreement is deemed deleted under clause 19.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Entire agreement
This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
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.
Nothing in this clause shall limit or exclude any liability for fraud.
Assignment
The Customer shall not, without the prior written consent of ESProfiler, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
ESPROFILER may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement, provided that it gives prior written notice of such dealing to the Customer.
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).
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.
Notices
Any notice given to a party under or in connection with this Agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered by hand, or sent by pre-paid first class post or other next working day delivery service, or email.
A notice shall be deemed to have been received: if delivered by hand, when left at the address referred in Clause 24.1; or if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or, if sent by email, one Business Day after transmission.
Notices sent by email shall be sent to the following addresses:
ESPROFILER
info@esprofiler.com
The Customer
As set out in the Order Form or as otherwise notified in writing by the Customer.
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 interpreted in accordance with the law of England and Wales.
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).