THIS END USER LICENCE AGREEMENT IS INTENDED FOR USE BY BUSINESS OWNERS ONLY AND NOT BY CONSUMERS. IF YOU ARE A CONSUMER THESE TERMS AND CONDITIONS WILL BE MODIFIED TO REFLECT THE ADDITIONAL RIGHTS YOU HAVE BY LAW AND YOU MUST NOT ATTEMPT TO PURCHASE THE SERVICES WE OFFER BEFORE YOU HAVE AGREED THE MODIFIED TERMS WITH US.
IT IS AGREED as follows:
1. Definitions and Interpretation
In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:
Business Day means any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in London;
Business Hours means the hours from 9:00am to 5:00pm on a Business Day;
Commencement Date means the commencement date specified in the Confirmation;
Confidential Information means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to, or in connection with, this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such). This shall include, but not be limited to, information contained in the Service and the Specification;
Confirmation means an email from the Licensor to the Licensee confirming that an agreement for the use of the Service by the Licensee and the terms of that use have been agreed;
Fee means the fee payable for the Service as published in the Confirmation;
Licensee means the entity purchasing the Services from the Licensor;
Licensor means Hexner Limited, a company registered in England and Wales under company number 06266827 and whose registered office is at 27 St Peters Road, Holsworthy, Devon EX22 6FB;
Equipment means such computer equipment (including mobile devices where appropriate) as may be specified by the Licensor from time to time and presently includes Windows 7, Windows 8 and Windows 10, together with Net Framework 4.5.1;
Intellectual Property Rights means:
(a) any and all rights in any copyrights, patents, trade marks, service marks, registered designs, applications (and rights to apply for any of those rights) trade, business and company names, internet domain names and email addresses, unregistered trade marks and service marks, database rights, know-how, rights in designs and inventions;
(b) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraph (a);
(c) rights of the same or similar effect or nature as or to those in paragraphs (a) and (b) which now or in the future may subsist; and
(d) the right to sue for past infringements of any of the foregoing rights;
Licence means the licence granted by the Licensor pursuant to sub-Clause 2.1;
Licensed Programs means Proud Numbers and all programs of and all releases and versions thereof required to use and operate such service;
Licensee Data means the data provided by the Licensee and processed by the Licensor using the Service;
Named User means a user of the Service named by the Licensee and accepted by the Licensor or by the Service as the user of the Service;
Program Support Documentation means the documentation for the Services produced by and delivered or made available by the Licensor to the Licensee;
Service means, collectively, the Licensed Programs and the Program Support Documentation;
Site means www.proudnumbers.com;
Term means the term agreed between the Parties and evidenced in the Confirmation;
Use the Licensed Program Materials means to read any or all parts of the Licensed Programs from any form of storage media, to load the Licensed Programs on the Equipment for the storage and/or running of the Licensed Programs, to read and possess the Program Support Documentation in conjunction with the use of the Licensed Programs.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 "writing", and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.3 "this Agreement" is a reference to this Agreement and each of the Schedules as amended or supplemented at the relevant time;
1.2.4 a Schedule is a schedule to this Agreement;
1.2.5 a Clause or paragraph is a reference to a clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule; and
1.2.6 a "Party" or the "Parties" refers to the parties to this Agreement.
1.3 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.4 Words imparting the singular number shall include the plural and vice versa.
1.5 References to any gender shall include the other gender.
1.6 Words importing persons include firms, companies and corporations and vice versa.
1.7 The words and phrases in the left hand column of the table at the head of this Agreement shall have the meanings ascribed to them in the right hand column.
2.1 The Licensor hereby grants to the Licensee a non-exclusive licence to use the Service on one workstation using the Equipment in accordance with the Program Support Documentation during the Term.
2.2 The Licensee must not:
2.2.1 sub-license its right to access and use the Service; or
2.2.2 allow any person other than a Named User to use the Services in any way which is or may be unlawful, illegal, fraudulent or which might or would cause harm or damage to any other entity.
2.3 The Licensee accepts that it has no right to access the software code used by the Service at any time either during or after the Term.
2.4 The Service includes the right for the Licensor to make up to three telephone calls to the Licensor and (within reason) unlimited email requests for support during the Term and without charge. Should the Licensee require any telephone calls in addition to those mentioned, the Licensee will pay the Licensor's standard charge therefor.
3. Licence Term
The Licence shall commence on the Commencement Date and shall continue for the Term and from year to year thereafter until or unless terminated in accordance with any of the provisions of Clause 16 or any other relevant Clause of this Agreement.
4.1 The Fee shall be paid by the Licensee annually in advance.
4.2 The Fee and other charges payable under this Agreement are exclusive of any applicable VAT and other sales tax which shall be payable by the Licensee at the rate and in the manner prescribed by law against submission of a valid tax invoice.
4.3 Any charges payable by the Licensee under this Agreement in addition to the Fee shall be paid within 10 Business Days after the receipt by the Licensee of the Licensor's invoice therefor.
4.4 The Licensor may charge interest on overdue invoices at the rate of 6 per cent per year above the base rate of Barclays Bank plc, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.
4.5 If any amount due to be paid by the Licensee to the Licensor under this Agreement is overdue by seven days or more the Licensor may without notice to the Licensor suspend the Service.
5.1 The Licensor shall create a support account for the Licensee and shall provide to the Licensee a secure means of access to that account.
5.2 The Licensee shall use reasonable endeavours, including reasonable security measures, to ensure that no unauthorised person may gain access to the Service using the support account referred to in clause 5.1.
6. Restrictions on Copying
The Licensee may make no copies of the Licensed Programs.
7. Restrictions on Alterations
7.1 The Parties acknowledge that the Licensed Programs may be modified from time to time by the Licensor in order to provide enhanced functionality.
7.2 The Licensee undertakes not to translate, adapt, vary, modify, disassemble, decompile, deobfuscate or reverse engineer the Licensed Programs in any manner without the Licensor's prior written consent.
8. Security and Control
The Licensee shall during the continuance of the Licence effect and maintain adequate security measures to safeguard the Service from access or use by any unauthorised person.
9. Licensor's Proprietary and Intellectual Property Rights
9.1 The Service and any and all Intellectual Property Rights of whatever nature which now or in the future subsist in the Service are and shall remain the property of the Licensor.
9.2 The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Service by any person.
10. Intellectual Property Claims and Claims
10.1 The Licensor shall defend at its own expense any claim brought against the Licensee alleging that the use of the Service infringes the Intellectual Property Rights of a third party ("Intellectual Property Claim") and the Licensor shall pay all costs and damages awarded or agreed to in settlement of an Intellectual Property Claim provided that the Licensee:
10.1.1 furnishes the Licensor with prompt written notice of the Intellectual Property Claim;
10.1.2 provides the Licensor with reasonable assistance in respect of the Intellectual Property Claim; and
10.1.3 gives to the Licensor the sole authority to defend or settle the Intellectual Property Claim.
10.2 If, in the Licensor's reasonable opinion, the use of the Service is or may become the subject of an Intellectual Property Claim then the Licensor shall either:
10.2.1 obtain for the Licensee the right to continue using the Service which is the subject of the Intellectual Property Claim; or
10.2.2 replace or, with the written consent of the Licensee, modify the Service or those parts which are the subject of the Intellectual Property Claim so they become non-infringing.
10.3 If the remedies set out in sub-Clause 10.2 are not in the Licensor's opinion reasonably available, then the Licensee shall immediately cease to use the Service and the Licensor shall refund to the Licensee the corresponding portion of the Fee, as normally depreciated, whereupon this Agreement shall immediately terminate.
10.4 The Licensor shall have no liability for any Intellectual Property Claim resulting from the use of the Service in combination with any equipment (other than the Equipment) or programs not supplied or approved by the Licensor or any modification of any item of the Licensed Programs by a party other than the Licensor or its authorised agent.
11.1 The Licensor warrants that during the Term:
11.1.1 the Program Support Documentation will provide adequate instructions to enable the Licensee to make proper use of such facilities and functions; and
11.1.2 the Service, when used by the Licensee in accordance with this Agreement, will not breach any laws, statutes, statutory instruments or regulations applicable under English law.
11.2 The Licensor warrants that in fulfilling its obligations under this Agreement it will attain standards of care and skill commensurate with those currently prevailing in the software industry and that all personnel will have qualifications and experience appropriate for the tasks to which they are allocated.
11.3 The Licensor shall ensure that it and its servants, agents and subcontractors take all reasonable precautions to ensure that no known viruses, spyware or other malware for which detection and antidote software is generally available are coded or introduced into the Licensed Programs.
11.4 If the Licensor receives written notice from the Licensee after the Commencement Date of any breach of the said warranties then the Licensor shall at its own expense and within 20 Business Days after receiving such notice remedy the defect or error in question.
11.5 When notifying a defect or error the Licensee shall (so far as it is able) provide the Licensor with a documented example of such defect or error.
11.6 The Licensee warrants that it is not using the Service as a consumer.
11.7 The said warranties above shall be subject to the Licensee complying with its obligations under the terms of this Agreement and shall also be subject to the limits and exclusions of liability set out in Clause 12. In particular, the said warranties shall not apply to the extent that any defect in the Licensed Programs arose or was exacerbated as a result of:
11.7.1 incorrect use, operation or corruption of the Licensed Programs;
11.7.2 any unauthorised modification or alteration of the Licensed Programs; or
11.7.3 use of the Licensed Programs with other software or on equipment with which it is incompatible.
11.8 To the extent permitted by applicable law, the Licensor:
11.8.1 disclaims all other warranties with respect to the Licensed Programs, either express or implied, including but not limited to any implied warranties relating to quality, fitness for any particular purpose or ability to achieve a particular result; and
11.8.2 makes no warranty that the Licensed Programs are error free or that the use thereof will be uninterrupted and the Licensee acknowledges and agrees that the existence of such errors shall not constitute a breach of this Agreement.
11.9 Each Party warrants to the other that it has the legal right and authority to enter into this Agreement.
12. Acknowledgements and Warranty Limitations
12.1 The Licensee acknowledges that complex software is never wholly free from defects of any nature; and subject to the other provisions of this Agreement, agrees and accepts that the Licensor gives no warranty or representation that the Service will be wholly free from such defects.
12.2 The Licensee acknowledges that the Licensor will use its best endeavours to ensure that the Service is free from security vulnerabilities but accepts and agrees that, subject to the other provisions of this Agreement, the Licensor gives no warranty or representation that the Service will be entirely secure.
12.3 The Licensee acknowledges that the Service is designed to be compatible only with the Equipment and the Licensor does not warrant or represent that the Service will be compatible with any other software or systems.
13.1 The Licensor hereby undertakes to indemnify and hold harmless the Licensee and to keep the Licensee at all times fully and effectively indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Licensee on a solicitor and own-client basis), awards or damages howsoever arising - directly or indirectly - as a result of any breach or non-performance by the Licensor of any of the Licensor's warranties or obligations under this Agreement.
13.2 The Licensee hereby undertakes to indemnify and hold harmless the Licensor and to keep the Licensor at all times fully and effectively indemnified from and against all actions, proceedings, claims, demands, costs (including without prejudice to the generality of this provision the legal costs of the Licensee on a solicitor and own-client basis), awards or damages howsoever arising - directly or indirectly - as a result of any breach or non-performance by the Licensee of any of the Licensee's warranties or obligations under this Agreement.
14.1 The Licensor will indemnify the Licensee for direct damage to tangible property caused by defects in any product supplied pursuant to this Agreement. The Licensor's total liability under this Clause shall be limited to the amount paid by the Licensee during the 12 months immediately preceding the date of the incident which gave rise to the claim for any one event or series of connected events.
14.2 Save in respect of claims for death or personal injury arising from the Licensor's negligence, in no event will the Licensor be liable for any damages resulting from loss of data or use, lost profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of the Licensor whether such damages were reasonably foreseeable or actually foreseen.
14.3 The Licensee's statutory rights as a consumer (where the Licensee is a consumer and not acting in the course of business) are not affected. All liability that is not expressly assumed in this Agreement is excluded. These limitations will apply regardless of the form of action, whether under statute, in contract or tort including negligence or any other form of action. For the purposes of this Clause, references to the "Licensor" include its employees, sub-contractors and suppliers who shall all have the benefit of the limits and exclusions of liability set out above in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in this Agreement shall exclude or limit liability for fraudulent misrepresentation.
15.1 Both Parties undertake that, except as provided by sub-Clause 15.2 or as authorised in writing by the other Party, they shall at all times during the continuance of this Agreement and after its termination:
15.1.1 keep confidential all Confidential Information;
15.1.2 not disclose any Confidential Information to any other party;
15.1.3 not use any Confidential Information for any purpose other than as contemplated by this Agreement;
15.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
15.1.5 ensure that (as applicable) none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of this Clause 15.
15.2 Subject to sub-Clause 15.3, either Party may disclose any Confidential Information to:
15.2.1 any of their sub-contractors, substitutes or suppliers;
15.2.2 any party appointed to maintain the Equipment on which the Licensed Programs are being used (within the terms of the Licence);
15.2.3 any governmental or other authority or regulatory body; or
15.2.4 any of their employees or officers or those of any party described in sub-Clauses 15.2.1 to 15.2.3.
15.3 Disclosure under sub-Clause 15.2 may be made only to the extent that it is necessary for the purposes contemplated by this Agreement, or as required by law. In each case the disclosing Party must first inform the recipient that the Confidential Information is confidential. Unless the recipient is a body described in sub-Clause 15.2.3 or is an authorised employee or officer of such a body, the disclosing Party must obtain and submit to the other Party a written undertaking from the recipient to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made.
15.4 Either Party may use any Confidential Information for any purpose, or disclose it to any other party, where that Confidential Information is or becomes public knowledge through no fault of that Party.
15.5 When using or disclosing Confidential Information under sub-Clause 15.4, the disclosing Party must ensure that it does not disclose any part of that Confidential Information which is not public knowledge.
15.6 The provisions of this Clause 15 shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.
16.1 The Licensee may terminate this Agreement whether acquired by way of a free trial or after purchase without liability at any time within the period of 30 days starting on the Commencement Date on giving written notice to that effect to the Licensor and on receipt of such notice the Licensor will refund to the Licensee all monies paid under the terms of this Agreement.
16.2 Either Party may forthwith terminate this Agreement by giving written notice to the other Party if:
16.2.1 any sum owing to that Party by the other Party under any of the provisions of this Agreement is not paid within 20 days of the due date for payment;
16.2.2 the other Party commits any other breach of any of the provisions of this Agreement and, if the breach is capable of remedy, fails to remedy it within 20 days after being given written notice giving full particulars of the breach and requiring it to be remedied;
16.2.3 an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
16.2.4 the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
16.2.5 the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or reconstruction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on the other Party under this Agreement);
16.2.6 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
16.2.7 the other Party ceases, or threatens to cease, to carry on business; or
16.2.8 control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of this Agreement. For the purposes of this Clause 16, "control" and "connected persons" shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.
16.3 The right to terminate this Agreement given by this Clause 16 shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.
16.4 Upon the termination of the Licence, the Licensee shall immediately cease using the Service.
16.5 Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
16.6 For the avoidance of doubt, lack of availability of the Service caused directly or indirectly by any of the following events shall not be considered a breach of this Agreement:
16.6.1 a fault or failure of the internet or any public telecommunications network;
16.6.2 a fault or failure of the Licensee's computer systems or networks; or
16.6.3 an event of the nature of force majeure as defined in Clause 17.
17. Force Majeure
17.1 Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, internet service licensor failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
17.2 If such circumstances continue for a continuous period of more than three months, either Party may terminate this Agreement by written notice to the other Party.
18. No Agency or Partnership
This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
20.1 All notices under this Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
20.2 Notices shall be deemed to have been duly given:
20.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.2.2 when sent, if transmitted by facsimile or email and a successful transmission report or return receipt is generated; or
20.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
20.2.4 on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, email address or facsimile number notified to the other Party.
21. Successors and Assignees
21.1 This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assignees, and references to a "Party" in this Agreement shall include its successors and permitted assignees.
21.2 In this Agreement references to a "Party" include references to a person:
21.2.1 who for the time being is entitled (by assignment, novation or otherwise) to that Party's rights under this Agreement (or any interest in those rights); or
21.2.2 who, as administrator, liquidator or otherwise, is entitled to exercise those rights,
and in particular those references include a person to whom those rights (or any interest in those rights) are transferred or pass as a result of a merger, division, reconstruction or other reorganisation involving that Party. For this purpose, references to a Party's rights under this Agreement include any similar rights to which another person becomes entitled as a result of a novation of this Agreement.
22. Nature of the Agreement
22.1 This Agreement is personal to the Parties and neither Party may assign, mortgage or charge (otherwise than by floating charge) or sub-license any of its rights hereunder, or sub-contract or otherwise delegate any of its obligations hereunder, except with the written consent of the other Party, such consent not to be unreasonably withheld.
22.2 Notwithstanding the provisions of sub-Clause 22.1, either Party may assign this Agreement to any acquirer of all or substantially all of that Party's equity securities, assets or business relating to the subject matter of this Agreement or to any entity controlled by, that controls, or is under common control with a Party to this Agreement. Any attempted assignment in violation of this Clause will be void and without effect.
22.3 This Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.
22.4 Each Party acknowledges that, in entering into this Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in this Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
22.5 No failure or delay by either Party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
22.6 Notwithstanding the provisions of sub-Clause 22.1 the Licensor shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled subcontractors. Any act or omission of such other member or subcontractor shall, for the purposes of this Agreement, be deemed to be an act or omission of the Licensor.
This Agreement may be executed in any number of counterparts or duplicates, each of which shall be an original, and such counterparts or duplicates shall together constitute one and the same agreement.
24. Time of the Essence
Time shall not be of the essence in this Agreement as regards any time, date or period mentioned in this Agreement or subsequently substituted as a time, date or period by agreement in writing between the Parties.
25. Costs and Expenses
Each Party shall bear its own legal costs and other costs and expenses arising in connection with the drafting, negotiation, execution and registration (if applicable) of this Agreement.
Where either Party has incurred any liability to the other Party, whether under this Agreement or otherwise, and whether such liability is liquidated or unliquidated, each Party may set off the amount of such liability against any sum that would otherwise be due to the other Party under this Agreement.
27. Third Parties
Subject to Clause 22, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from such Act.
28. Dispute Resolution
28.1 This Agreement and all matters arising from it and any dispute resolutions referred to below shall be governed by and construed in accordance with the laws of England and Wales notwithstanding the conflict of law provisions and other mandatory legal provisions save that:
28.1.1 the Licensor shall have the right to sue to recover its fees in any jurisdiction in which the Licensee is operating or has assets; and
28.1.2 the Licensor shall have the right to sue for breach of its Intellectual Property Rights and other proprietary information and trade secrets (collectively "IPR") (whether in connection with this Agreement or otherwise) in any jurisdiction where it believes that infringement or a breach of this Agreement relating to its IPR might be taking place. For the avoidance of doubt, the place of performance of this Agreement is agreed by the Parties to be England and Wales.
28.2 Each Party recognises that the other Party's business relies upon the protection of its IPR. In the event of a breach or threatened breach of IPR, the other Party will be caused irreparable damage and such other Party may therefore be entitled to injunctive or other equitable relief in order to prevent a breach or threatened breach of its IPR.
28.3 With respect to all other disputes which are not IPR related pursuant to sub-Clauses 28.1 and 28.2, the following procedures in sub-Clauses 28.3 to 28.6 shall apply. Where there is a dispute the aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other Party. A representative from senior management of each of the Parties ("representatives") shall meet in person or communicate by telephone within five Business Days of the date of the written notification in order to reach an agreement about the nature of the deficiency and the corrective action to be taken by the respective Parties. The representatives shall produce a report about the nature of the dispute in detail to their respective boards and if no agreement is reached on corrective action, then the chief executives of each Party shall meet in person or communicate by telephone, to facilitate an agreement within five Business Days of a written notice by one to the other. If the dispute cannot be resolved at board level within a further five Business Days, or if the agreed upon completion dates in any written plan of corrective action are exceeded, either Party may seek its legal remedies as provided below.
28.4 If the Parties cannot resolve a dispute in accordance with the procedure in sub-Clause 28.3, then they shall, with the assistance of the Centre for Effective Dispute Resolution ("CEDR"), seek to resolve the dispute or difference amicably by using an Alternative Dispute Resolution ("ADR") procedure acceptable to both Parties before pursuing any other remedies available to them. If either Party fails or refuses to agree to or participate in the ADR procedure or if in any event the dispute or difference is not resolved to the satisfaction of both Parties within 20 Business Days after it has arisen, the matter shall be settled in accordance with the procedure below.
28.5 If the Parties cannot resolve the dispute by the procedure set out above, the Parties shall irrevocably submit to the exclusive jurisdiction of the courts of England and Wales for the purposes of hearing and determining any dispute arising out of this Agreement as confirmed under Clause 29.
29. Law and Jurisdiction
29.1 This Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
29.2 Subject to the provisions of Clause 28, any dispute, controversy, proceedings or claim between the Parties relating to this Agreement (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.