BAD BERRIES LTD

MASTER SERVICES AGREEMENT

Background
The parties wish to establish a flexible contractual framework that will enable the Client to obtain Services (as defined below) from BADBERRIES. The details of the Services to be provided by BADBERRIES will be set out in one or more Statements of Work, to be agreed in writing between the parties. Each Statement of Work will be subject to the terms set out in this Master Services Agreement.
The parties agree as follows:
Order Process
The parties will agree one or more Statements of Work, setting out the Services and/or Deliverables to be provided by BADBERRIES to the Client. The Client will review each Statement of Work prior to signature and will confirm that is complete and accurate. Neither party will be bound by the provisions of a Statement of Work until it has been agreed in writing by both parties.
Services and Deliverables
In consideration for the payment of the Charges and subject to the terms of this Agreement, BADBERRIES will provide the Services and any Deliverables set out in each Statement of Work materially in accordance with the terms of this Master Services Agreement and all terms set out in the Statement of Work.
BADBERRIES will use reasonable efforts to carry out the Services in accordance with the estimated duration referred to in the Statements of Work or otherwise specified by the Client or BADBERRIES. However, unless both parties specifically agree otherwise in writing, all dates given by BADBERRIES or specified by the Client are intended for planning and estimating purposes only.
All timescales for performance of the Services shall be extended by a reasonable period if any delay, interruption or stoppage of any part of the Services is caused by default, instruction or delay of the Client and/or others for whom the Client is responsible or arising from circumstances beyond the reasonable control of the parties, such extension being not less than the period of such delay, interruption or stoppage. For example, if a Client accepts a Statement of Work but subsequently fails to engage with BADBERRIES in providing instructions in a timely manner, BADBERRIES may need to divert resources to other active projects. It may, therefore, require additional time to deliver the Services when instructions are provided.
Acceptance Procedure
Where the Statement of Work states that there are Deliverables, the following acceptance procedure will apply:
The Statement of Work will set out the process for deciding whether the Deliverables are acceptable (Acceptance Process) and the agreed number of revisions to be provided by BADBERRIES within the scope of the Charges (Revisions).
The Client will complete the Acceptance Process during the acceptance period set out in the applicable Statement of Work (Acceptance Period).
The Client shall notify BADBERRIES where the results of the Acceptance Process do not appear to match the expected results (Non-Compliance), providing evidence of each Non-Compliance where reasonably requested by BADBERRIES.
BADBERRIES will use reasonable endeavours to correct each Non-Compliance as soon as reasonably possible after receipt of notification, up to the maximum number of Revisions.
Where the Client has not notified BADBERRIES of any Non-Compliance, or where all Non-Compliance has been corrected, Acceptance shall be deemed to have occurred on completion of the Acceptance Period.
Where a Non-Compliance has been identified during the Acceptance Period, Acceptance shall be deemed to have occurred at the end of the Acceptance Period in respect of all part(s) of the Deliverables that are not affected by the Non-Compliance.
Client Responsibilities
The Client acknowledges that BADBERRIES’ ability to provide the Services and Deliverables is dependent upon the full and timely co-operation of the Client (which the Client agrees to provide) and the Client’s compliance with the Client obligations set out in this clause 4 and the Statement of Work (Client Responsibilities).
If the Client fails, upon request from BADBERRIES, to provide BADBERRIES with instructions for a period of one calendar month or longer, BADBERRIES is entitled to charge the administrative fees incurred by BADBERRIES for keeping the Client’s file open (which may include fees for holding money on account) from the end of that calendar month period, provided that BADBERRIES informs the Client in advance, in writing, what those administrative fees will be. BADBERRIES shall be entitled to allocate funds from any money held on account for the Client in question to cover these administrative fees.
The Client will provide BADBERRIES with access to, and use of, all materials, information and documentation that is relevant to the Services and Deliverables (Client Materials). Save as otherwise agreed with BADBERRIES, the Client will provide all Client Materials required for each Statement of Work, even where the same or similar information has been provided in connection with a previous Statement of Work or under a separate agreement.
The Client will be responsible for the accuracy and completeness of the Client Materials and BADBERRIES shall be entitled to rely on all information obtained from them. The Client acknowledges that BADBERRIES will not test or verify the information provided to it in connection with this Agreement.
The Client will, within a reasonable time (which may be specified by BADBERRIES where applicable):
take decisions that are necessary or desirable to facilitate BADBERRIES’ provision of the Services or Deliverables;
provide such access to the Client's computer systems, facilities and/or premises as is necessary or desirable to facilitate BADBERRIES’ provision of the Services or Deliverables;
where the Client requires BADBERRIES to use third party tools to perform the Services, obtain a licence for every copy of such third party tools that permits use by BADBERRIES, and comply with all terms and conditions of such licence. The Client will provide BADBERRIES with a copy of all such licence terms and conditions on request; and
notify BADBERRIES if it becomes aware of any unauthorised use of all or part of the Services or Deliverables.
The Client will not, and will procure that its employees, sub-contractors or any third party authorised to use the Services or Deliverables by the Client will not:
use the Services or Deliverables in an unlawful manner;
use the Services or Deliverables to transfer or publish any illegal material (including but not limited to material which may be deemed to be offensive, abusive, indecent, defamatory, obscene, menacing, in contempt of Court or in breach of copyright, confidentiality, privacy or other rights);
divulge to a third party any passwords that allow the Client to have access to the Services or Deliverables, and the Client will keep all passwords confidential and inaccessible to third parties; or
use or permit the use of the Services and Deliverables other than in accordance with the relevant Statement of Work.
Where the Services are provided at the direction of and under the control of the Client or its third-party representatives, the Client is solely responsible for assessing the suitability of such Services for its needs, and for the quality of the end result obtained from performance of the Services. The Client will apply its independent business judgement to evaluate all advice or recommendations that BADBERRIES gives. The Client will be responsible for deciding whether BADBERRIES’ recommendations make sense in the context of its business, and whether it wishes to rely on, implement or act on them, including the actions necessary to realise any expected benefits.
Charges and Payment
BADBERRIES will issue invoices to the Client in accordance with the relevant Statement(s) of Work for the respective Services, or, where not otherwise specified, monthly in arrears.
The Client will pay the Charges set out in each of the Statement(s) of Work, and otherwise arising in accordance with this Agreement within the period set out in the Statement(s) of Work, or, where not otherwise specified, within thirty (30) days of the invoice date.
The Client will pay BADBERRIES’ reasonable out of pocket Expenses, in addition to the Charges set out in the applicable Statement of Work. Any special expense arrangements will be agreed by the parties and either set out in the Statement of Work or agreed by the parties in advance in writing.
The Client acknowledges that different Statements of Work may carry different Charges, and that BADBERRIES may increase its charges in subsequent Statements of Work.
All Charges are exclusive of value added tax, and all other taxes, which will be payable by the Client and calculated at the appropriate rate at the time of charging.
If the Client disputes any portion of an invoice, it shall notify BADBERRIES within 14 days of the date of receipt and pay the undisputed portion in accordance with clause 5.2.
If the Client fails to make any payment due to BADBERRIES under this Agreement by the due date, then, without limiting BADBERRIES’ remedies under this Agreement:
the Client will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this clause will accrue each day at 4% a year above Bank of England's base rate, but at 4% a year for any period when that base rate is below 0%; and/or
BADBERRIES reserves the right to suspend the provision of the Services or any part thereof.
Warranties
BADBERRIES warrants that:
the Services will be performed with reasonable skill and care; and
use of the Services and Deliverables by the Client shall not infringe the Intellectual Property Rights of any third party.
All warranties, representations, guarantees, conditions and terms, other than those expressly set out in this Agreement whether express or implied by statute, common law, trade usage or otherwise and whether written or oral are hereby expressly excluded to the fullest extent permissible by law.

All Third Party Products are provided on an “as is” basis by BADBERRIES without any warranty of any kind as to the accurateness, completeness or fitness for a particular purpose of the Third Party Product, other than as expressly agreed in writing by BADBERRIES and set out in a Statement of Work. The Client’s rights and remedies with respect to claims arising out of or relating to any Third Party Product will be against the third party and not against BADBERRIES.
Limitation of Liability
Nothing in this Agreement will operate to exclude or limit either party’s liability for:

death or personal injury caused by its negligence;

any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

fraud or fraudulent misrepresentation; or

any other liability which cannot be excluded or limited under applicable law.

Subject to clause 7.1, in no event shall BADBERRIES (including its respective agents and sub-contractors) be liable for:

any loss of profits, anticipated profits, revenues, anticipated savings, loss of data, business interruption, loss of use, loss of contracts, loss of management time, loss of goodwill and reputation, or loss of business opportunity (in each case, whether direct or indirect); or

any indirect, incidental, punitive, exemplary, or consequential damages arising out of or in connection with this Agreement, even if BADBERRIES has been advised of the possibility of such damages.

In no event shall BADBERRIES (including its respective agents and sub-contractors) be liable for:

any defect or default arising from or caused by any changes made to the Services and/or Deliverables by anyone other than BADBERRIES;

any unauthorised access to the Services and/or Deliverables by anyone other than BADBERRIES;

any use of the Services and/or Deliverables which is not in accordance with standard use for Services and/or Deliverables of the type provided, or specific instructions provided by BADBERRIES; or

any failure of the Services and/or Deliverables that is due to any integration or interoperability issues arising with any Third Party Product or Client systems or legacy systems.

Subject to clauses 7.1, 7.2 and 7.3, BADBERRIES’ aggregate liability, whether in contract or tort (including negligence) or otherwise, shall be as follows:

for claims arising out of or in connection with a Statement of Work, BADBERRIES’ liability shall not exceed 100% of Charges (excluding Expenses) paid by the Client in connection with the applicable Statement of Work in the 12 months prior to the date on which the Client first notified BADBERRIES in writing of the existence of a claim; and

in respect of all other claims arising out of or in connection with this Agreement (where there is no relevant Statement of Work), BADBERRIES’ liability will in no circumstances exceed the greater of (i) the sum of £50,000 or (ii) 100% of the Charges (excluding Expenses) paid by the Client to BADBERRIES under this Agreement in the 12 months prior to the date on which the Client first notified BADBERRIES in writing of the existence of a claim.

In the event that BADBERRIES fails to comply with its obligations under this Agreement then it will be entitled to be given a reasonable opportunity to correct any errors and re-perform its obligations and provide the Services hereunder.

Any legal proceedings arising from this Agreement or any Statements of Work must be brought within 24 months from the date when the party bringing the proceedings first becomes aware or ought reasonably to have become aware of the facts which give rise to the liability or alleged liability.

Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances.
Dispute Resolution
All disputes arising under, or in connection with this Agreement shall be dealt with in accordance with this clause 8 and neither party shall be entitled to commence or pursue any legal proceedings under the jurisdiction of the Courts in connection with any such dispute, until the procedures set out in this clause 8 have been exhausted.

In the event of a dispute between the Parties, the parties will first attempt to resolve such dispute by negotiation and consultation between them.

In the event that such dispute is not resolved on an informal basis within 10 Business Days from receipt of the written notice of a Dispute, any Party may, by written notice to the other, have such dispute referred to the executive officers of each party (or their designees, which designee is required to have decision-making authority on behalf of such Party), who will attempt to resolve such Dispute by negotiation and consultation for a 10 Business Day period following receipt of such written notice.

This clause 8 does not apply to non-payment of undisputed invoices.
Intellectual Property Rights
With effect from receipt of full payment for all Services and any Deliverables provided under the applicable Statement of Work, BADBERRIES hereby assigns to the Client all right, title and interest in and to the Bespoke Developments created under the applicable Statement of Work, by way of present and future assignment of the Intellectual Property Rights in the same, free from all encumbrances with full title guarantee, including all rights of actions arising or accrued in relation thereto including, without limitation, the right to take up proceedings and to seek and recover damages and the right to obtain delivery-up of all infringing copies and all other remedies for infringement; and BADBERRIES shall procure the waiver of all moral rights attaching to the Bespoke Developments pursuant to Chapter IV of Part I of the Copyright, Design and Patents Act 1988 and any similar or corresponding rights.
BADBERRIES acknowledges that the Client owns all Intellectual Property Rights in the Client Materials. In respect of the Client Materials, the Client hereby grants BADBERRIES a non-exclusive, non-transferrable, non-assignable licence to use the Client Materials strictly for the performance of BADBERRIES’ obligations under this Agreement. On termination or expiry of this Agreement, for any reason and howsoever arising, and subject to clause 16, the licence granted to BADBERRIES under this clause 9.2 will terminate forthwith.

Unless otherwise agreed in writing between the parties, the Third Party Products provided by BADBERRIES as part of the Deliverables will remain the property of the relevant third party.

The Background Intellectual Property and all intellectual property in the BADBERRIES Materials is owned by BADBERRIES. BADBERRIES hereby grants to the Client a non-exclusive, non-transferable, non-sublicensable licence to use all such Background Intellectual Property and the intellectual property in the BADBERRIES Materials to the extent necessary to use the Bespoke Developments and/or to receive the intended benefit of this Agreement, as set out in the applicable Statement of Work.

The Client (in this scenario the “indemnifier”) will indemnify BADBERRIES (in this scenario the “indemnified party”) against all damages, losses and expenses arising as a result of any action or claim that the Client Materials infringe the Intellectual Property Rights of a third party.

Subject to the cap on liability set out in clause 7.4, BADBERRIES (in this scenario the “indemnifier”) will indemnify the Client (in this scenario the “indemnified party”) against all damages, losses and expenses arising as a result of any action or claim that the BADBERRIES Materials or Bespoke Developments infringe the Intellectual Property Rights of a third party.

The obligations in clause 9.5 and clause 9.6 are subject to the following conditions:

the indemnified party promptly notifies the indemnifier in writing of the claim;

the indemnified party makes no admissions or settlements without the indemnifier's prior written consent;

the indemnified party gives the indemnifier all information and assistance that the indemnifier may reasonably require; and

the indemnified party allows the indemnifier exclusive control over the litigation and settlement of any action or claim.

The obligations in clause 9.6 will not apply to the extent that the action or claim arises out of:

BADBERRIES’ compliance with designs, specifications, or instructions of the Client;

the breach of any Statement of Work by the Client;

use of the Deliverables in a manner not permitted or contemplated by any Statement of Work;

any modification to the Deliverables by any person other than BADBERRIES without BADBERRIES’ prior written approval; or

Client’s refusal to use any modified or replacement Deliverable supplied, or offered to be supplied, pursuant to clause 9.9.

If at any time a claim is made, or in BADBERRIES’ opinion is likely to be made in respect of any Deliverable, BADBERRIES may at its own expense and option:

obtain for the Client the right to continue using such Deliverable; or

modify or replace the Deliverable to avoid infringement.
Data Protection
The parties agree to comply with their obligations under the Data Protection Laws. This clause 10 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Laws.
Where a Statement of Work indicates that BADBERRIES will process personal data on behalf of the Client, the parties acknowledge that for the purposes of the Data Protection Law, the Client is the Controller and BADBERRIES is the Processor and the additional data protection provisions set out in the Data Processing Agreement will apply.
Change Control Procedure
Either party may submit a request for a change to this Agreement or a Statement of Work (Change Request) in respect of all or part of the Services or Deliverables, at any time. Where such Change Request is submitted by the Client, the Client shall provide BADBERRIES with any information that BADBERRIES may reasonably request in connection with the Change Request.
Following submission of a Change Request by either party, BADBERRIES shall submit a written response (Change Control Notice) to the Client setting out the changes to timescales and additional cost, if any, that would arise as a result of the requested change and any other effects that such change will have on the Services and Deliverables.
Following receipt of a Change Control Notice the Client may elect to accept the terms of the Change Control Notice and shall notify BADBERRIES in writing of its decision to accept or not to accept such terms. In the event that the Client accepts the terms of the Change Control Notice, the relevant Statement of Work (including any agreed dates) shall be amended (which may be via an email exchange), or a new Statement of Work shall be executed to reflect the agreed change.
Where a Change Request is submitted by the Client, BADBERRIES reserves the right to charge for time spent investigating the Change Request and preparing the Change Control Notice at its then current rates.
No changes to the scope of the Services shall have effect until agreed by both parties, in accordance with this clause 11 or by execution of a replacement or additional Statement of Work.
Term and Termination
This Agreement will commence on the Effective Date and will (subject to earlier termination under this clause 12) continue until terminated by either party on the provision of not less than 90 (ninety) days’ written notice. Termination of this Agreement will not automatically terminate any Statements of Work that are in force at the time of termination, and this Agreement will continue to the extent necessary to interpret all such Statements of Work until they expire or are terminated in accordance with clauses 12.2, 12.4 or 12.5.
Each Statement of Work can only be terminated in accordance with the provisions expressly set out in the Statement of Work, or if no provisions are set out in the Statement of Work, on the provision of not less than 90 (ninety) days’ written notice.
If BADBERRIES’ Services are terminated pursuant to this clause 12 before completion of such Services:
all Charges for time spent and all Expenses properly incurred by BADBERRIES in accordance with the Statement of Work up to the date of such termination will be due and payable immediately by the Client; and
where the Client terminates a Statement of Work pursuant to clause 12.2, the Client will pay BADBERRIES for all additional costs reasonably incurred by BADBERRIES as a result of the early termination of the Services. BADBERRIES will take reasonable steps to mitigate any such costs.
Without affecting any other right or remedy available to it, BADBERRIES may terminate this Agreement and/or any Statement of Work with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 7 (seven) days after being notified in writing to make such payment.
Without affecting any other right or remedy available to it, either party may terminate this Agreement and/or any Statement of Work with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 20 (thirty) days after being notified in writing to do so;
the other party is affected by an Insolvency Event;
the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy; or
any warranty given by the other party in this Agreement is found to be untrue or misleading.
On termination of this Agreement by BADBERRIES under 12.4 or 12.5, all licences granted by BADBERRIES under this Agreement will terminate immediately.
On expiry or termination of this Agreement, BADBERRIES will promptly return all Client Materials to the Client and each party will return or delete (as appropriate) all Confidential Information of the other party.
On expiry or termination of this Agreement, the following provisions will continue in full force and effect: clauses 4.5, 5, (to the extent of any unpaid Charges and Expenses), 6, 7, 8, 9, 12.2, 12.3, 12.6, 12.8 (inclusive), 13, 14, 15, 16, 17 and 19, and all clauses required for their interpretation.
Confidentiality
Each party undertakes that it will not at any time during this Agreement, and for a period of five (5) years after termination of this Agreement, disclose to any person any Confidential Information, which is defined as information belonging to the other party, whether or not marked as ‘confidential’, whether technical or commercial (including, but not limited to, operations, processes, know-how, product information, general business affairs, all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or during discussions between the parties), where the information is:
identified as confidential at the time of disclosure; or
ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
except as permitted by clause 13.2.
The restrictions in clause 13.1 will not apply to such information that:
is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge, in each case other than by breach of this Agreement; or
subsequently comes lawfully into the possession of such party from a third party.
Each party may disclose the other party's Confidential Information:
to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party will ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's Confidential Information comply with this clause 13;
with the other party’s written consent; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
No party will use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
BADBERRIES may disclose to other Clients and prospective Clients that it has acted for the Client unless expressly instructed to the contrary, on the understanding that such disclosure shall at no time permit BADBERRIES to disclose Confidential Information to other Clients or prospective Clients.
Nothing in this Agreement will prevent or restrict BADBERRIES from providing services to other Clients (including services which are the same or similar to the Services) or using or sharing for any purpose any know-how, knowledge, experience and skills used in, gained or arising from performance of the Services subject to the obligations of confidentiality set out in this clause 13. The Client further agrees that to the extent BADBERRIES possesses information obtained under an obligation of confidentiality to another Client or other third party, BADBERRIES is not obliged to disclose it to the Client or make use of it for the Client’s benefit, however relevant it may be to the Services.
The parties agree that damages would not be an adequate remedy in respect of any breach of clause 13 and in addition to all other remedies that either party may be entitled to as a matter of law each party will be entitled to seek injunctive relief and any other form of equitable relief available in order to enforce the provisions of clause 13.
Uncontrollable Events
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from any Uncontrollable Events.
In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 30 (thirty) days, the party not affected may terminate this Agreement by giving 14 (fourteen) days’ written notice to the affected party.
Notices
Any notice or other communication given to a party under or in connection with this Agreement will be sent by email to the applicable email address set out in the Statement of Work.
Any notice or communication will be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 15.2, business hours means 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
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.
Publicity
BADBERRIES may on its website and in any of its marketing material refer to the Client as a Client of BADBERRIES (including reproducing the Client’s logo for such purpose) and may refer to the type of services that BADBERRIES has provided to the Client.
BADBERRIES may publish and circulate a case study and other promotional content describing the Services supplied by BADBERRIES to the Client (for use by BADBERRIES as a marketing tool).
Non-Solicitation
During the period this Agreement is in effect and for a period of twelve (12) months thereafter, the Client agrees not to solicit or to offer employment to any employees of BADBERRIES or any sub-contractors used by BADBERRIES hereunder without the prior written consent of BADBERRIES.
The Client acknowledges that it would be difficult to measure the amount of damage arising from a breach or threatened breach of any provision of the preceding clause and that money damages would be an inadequate remedy. The Client therefore agrees that BADBERRIES will be entitled to seek temporary and permanent injunctive relief to restrain the Client from any such breach or threatened breach.
Nothing in this Agreement will be construed as preventing BADBERRIES from pursuing any and all remedies available to it for a breach or threatened breach of any provision of this Agreement, including the recovery of monetary damages.
Sub-Contractors
BADBERRIES may engage any third party, (including a person, company or firm) as its or sub-contractor or agent to perform all or any of its obligations or duties under this Agreement.
BADBERRIES will remain primarily liable for any breach of this Agreement by a sub-contractor of BADBERRIES in the performance of such duties or obligations.
General Terms
Costs: Each party is responsible for its legal and other costs in relation to the preparation and performance of this Agreement.
Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
Third party rights: This Agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
Assignment and other dealings: No party may assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without the other party’s prior written consent or except as expressly permitted in this Agreement.
Entire agreement: This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly incorporated by reference in this Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not expressly embodied in this Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
Variation: No amendment or variation of this Agreement will be valid unless agreed in writing by an authorised signatory of each party.
Severability: If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
Counterparts: This Agreement may be signed in any number of counterparts and by the parties on separate counterparts, each of which when signed and dated will be an original, and such counterparts taken together will constitute one and the same agreement. This Agreement will not be effective until each party has signed one counterpart.
Governing law and jurisdiction: This Agreement is governed by the law of England and Wales. All disputes under this Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.