Master Software as a Service Agreement

This Master Software as a Service Agreement (this “SaaS Agreement“) is by and between Feaniks Limited with registered company number 12109594 and registered office address at 1st Floor, Gallery Court, 28 Arcadia Avenue, London, N3 2FG (“Provider” or “Feaniks”) and the Customer and governs one or more Order Forms executed by the Customer and Feaniks, and the use of the Products.

By executing an Order Form that references this SaaS agreement, Customer agrees to the terms of this SaaS Agreement.

Provider and Customer may be referred to herein collectively as the “Parties” or individually as a “Party“.

    1. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Products.
    2. “Affiliate” of a Party means any other legal entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Party, whether through the ownership of voting securities, by contract or otherwise.
    3. “Agreement” means this Master SaaS Agreement and the Order Form.
    4. “Aggregated Statistics” means data and information related to Customer’s use of the Products that is used by Provider in an aggregate, de-identified and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Products not including any Customer Data.
    5. “Authorized User” or “User” means the persons under the Customer’s responsibility who are authorized to use the Products. As soon as a person is registered on the Platform and identified by a “Unique Identifier” (email address), this individual has a personal account and becomes a User. Internal Users: means Users that are direct employees of the Customer or its Affiliates. External Users: means Users that are not employed by the Customer, i.e. sub-contractors, commercial partners, and the Customer’s customers, authorized to use the Platform by the Customer and Feaniks. For the avoidance of doubt, a User includes a person that has been added to the Platform and is Active, not Archived.
    6. “Customer” means the entity identified in the Order Form as “Customer”.
    7. “Customer Data” means information, data, and any other content, other than Aggregated Statistics, in any form or medium, that is submitted, posted, or otherwise transmitted by Customer to Provider in connection with the Products.
    8. “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Products provided by Provider to Customer electronically. User documentation and technical Documentation relating to the Products is available within the Provider’s platform.
    9. “Maintenance” means the provision of all updates, bug fixes, enhancements, new releases, new versions, and other improvements to the Platform to operate properly in accordance with this Agreement and the Documentation.
    10. “Order Form” means the ordering document specifying the Products to be provided, the price for the Products and the Term, that is entered into between Customer and Feaniks, including any exhibits thereto. By executing an Order Form, an Affiliate agrees to be bound by the terms of this SaaS Agreement as if it were an original party hereto.
    11. “Platform” means the online training platform developed and provided by Feaniks as part of the Products provided as SaaS, accessible from the following URL: It allows Customer to access digital training content, in accordance with the plan subscribed to by Customer.
    12. “Products” the products and services as set forth in Order Form i.e. the SaaS products and services excluding Customer Data, or any third-party application (service or digital computer application provided by a third-party publisher).
    13. “Provider IP” means all intellectual property rights in the Products, the Documentation, the Platform, and any and all other information, data and any other content provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Customer’s and Authorized User’s access to or use of the Products, but does not include Customer Data.
    14. Term” means the duration of this Agreement as set out in clause 12.1 including any and all Renewal Periods.
    1. Provision of Access. Subject to, and conditioned on Customer’s payment of the price set out in an Order Form as well as Customer’s compliance with all other terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.10) right to access and use the Products during the , solely for use by Authorized Users in accordance with these terms and conditions for Customer’s own needs and purposes in connection with its use of the Products. Once an Authorized User registers on the Platform using their email address, they will be able to access the Platform through their personal account. The total number of Products which may be used by the Authorized Users will be as set forth in the Order Form.
    2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.10) license to use the Documentation during the Term, solely for Customer’s own needs and purposes in connection with its use of the Products.
    3. Use Restrictions. Except to the extent expressly permitted under applicable law, Customer shall not use the Products for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, at any time, directly or indirectly, permit any Authorized Users to: (i) copy, modify, or create derivative works of the Products or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Products or Documentation available; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Products, in whole or in part; (iv) bypass or breach any security device or protection used by the Products; (v) remove any proprietary notices from the Products or Documentation; or (vi) use the Products or Documentation in any manner, or for any purpose, that infringes, misappropriates, or otherwise violates any intellectual property right or the rights of any individuals, or that violates any applicable.
    4. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to Provider IP.
    5.  Access to the Products in Beta Version or Trial. Feaniks may choose to offer free access to certain Products in beta version for a limited period of time or offer a new or existing Customer a trial of a service for a limited evaluation period (each referred to as a “Trial”). Feaniks: (i) may discontinue/terminate Customer’s Trial use at any time; and (ii) shall provide any access in beta Version or Trial “as is” with no express or implied guarantees of any kind.
    6. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s, and any Authorized User’s access to any portion or all of the Products if: (i) Provider reasonably determines that: (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) it is required by applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (ii) in accordance with Section 5.5, (any such suspension described in subclause (i), (ii), a “Product Suspension”). Provider shall provide written notice of any Product Suspension to Customer and to provide updates regarding resumption of access to the Products following any Product Suspension. Provider shall resume providing access to the Products as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a valid Service Suspension.
    7. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Products and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information and do not include any Customer.
    8. Protection of Customer Data. Feaniks will implement and maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. These safeguards will include (but will not be limited to) measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or its Authorized Users).
    9. As a Data Controller, Feaniks collects and processes Customer Data for the commercial and administrative management of Customer relations. This data is also processed to help improve the Products, in particular through the analysis of usage statistics or feedback. Feaniks may be required, exclusively to enable this administration and management, to communicate such personal data to its service providers and/or within its Affiliates.
    10. Return or Deletion of Customer Data. During the Agreement, Customer can export, from the dedicated interfaces made available in their administrator’s account and in the dashboard, Its personal contact data and platform usage statistics, downloadable in CSV format. These statistics can be split by Authorized User, Authorized User group and by training program.
    11. Feaniks shall to the extent allowed by applicable law, at the termination or expiration of the Agreement, delete all Customer Data in its possession.
    1. For the purpose of allowing access to the Products as defined herein, Feaniks shall:
      1. provide the Products in accordance with its Documentation and in accordance with good industry standards;
      2. at all times during the provision of the Products comply with all applicable laws, regulations and standards (including but not limited to data protection laws and anti-bribery laws);
      3. assign appropriately qualified personnel for the proper performance of the Products;
      4. provide necessary Maintenance for the SaaS Products;
      5. host and store content uploaded by Users via the Platform on a secure infrastructure;
      6. be responsible for the acts and omissions of its staff and subcontractors;
      7. implement appropriate security measures in connection with the Products;
    2. Feaniks warrants that it has full capacity and authority and all necessary license, permits, approvals and consents to enter into and to perform its obligations under this Agreement.
    3. The Parties shall co-operate in good faith including the Customer providing hardware, software and connectivity enabling them to access and use the Products. The technical requirements applicable to the Products are detailed in the Documentation.
    1. General. Customer is responsible and liable for all uses of the Products, Documentation and Customer Data resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or is in violation of this Agreement except where any unauthorized access is due to the fault, negligence or omission of the Provider. Without limiting the foregoing, Customer is responsible for the legality of Customer Data and all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Products and shall require Authorized Users to comply with such provisions.
    2. Points of Contact. Throughout the Term, Customer shall maintain within its organization, and communicate to Feaniks the contact information of a service manager and of an Administrator to serve as its primary points of contact for day-to-day communications, consultation, and decision-making in regard to this Agreement. Such points of contact shall be responsible for providing all day-to-day consents and approvals on behalf of Customer under this Agreement. Customer shall ensure its points of contact have the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity and shall maintain a point of contact in place throughout the Term. If such points of contact cease to be employed by Customer or Customer otherwise wishes to replace either of them, Customer shall promptly name a replacement by written notice to Feaniks.
    3. Effect of Customer Failure or Delay. Feaniks is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform any of its obligations under this Agreement.
    4. Applicable Laws and Regulations. Customer will use the Service in a manner consistent with any and all laws and regulations applicable to the Customer.
    1. The price for the Products is specified in the Order Form. Unless otherwise agreed in writing signed by both parties, the price shall apply for the duration of the Agreement. The Parties will agree in writing to any adjustment of the price in case of an increase in the number of Products to be used by Authorized Users.
    2. The Products are provided remotely. Any costs incurred by Feaniks (travel, accommodation, meals) that are required for the Products to be performed and have been agreed in writing by Customer beforehand, shall be invoiced as an extra charge to the Customer, subject to the presentation of an expense statement and valid VAT receipts.
    3. Billing and Payment. The first invoice will either be presented to the Customer for payment during the application process or will be sent to Customer by Provider on the date the Order Form is fully executed (“Effective Date”).
    4. Provider will send a renewal notice to Customer at least 60 days before the end of the Initial Term or relevant Renewal Term. On receipt of notice, Customer shall inform Provider if it wishes to adjust the number of each Product which will be made available during the Renewal Term provided that the total amount due in respect of all Products shall be at least the amount set out in the renewal notice (or higher).   Invoices in respect of Renewal Terms will be presented to the Customer by Provider at least 30 days before the commencement of each Renewal Term.
    5. Unless paid during the application process or except as otherwise specified in the Order Form, all payment shall be due within 30 (thirty) days from the Customer’s receipt of the invoice in accordance with the payment method indicated in the applicable Order Form.
    6. Once payment is received, the Provider will send access enrollment keys to the Customer to enable the Customer to access the Products. Further invoices will be presented to the Customer for payment in accordance with the Payment Terms set out in the Order Form.
    7. All amounts payable to Feaniks under this Agreement shall be paid by Customer to Feaniks in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
    8. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly (or, if higher, the lowest rate permitted under applicable law), (ii) if such failure continues for 30 (thirty) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Products until such amounts are paid in full.
    9. Billing Information. Customer will complete billing information in the text fields provided on the Order Form for this purpose, with all necessary information to identify Customer and issue invoices. This information will then be forwarded to Feaniks’s accounting department, which can also be contacted by email at Any change in the billing information or any questions regarding the accounting relationship between Customer and Feaniks must be sent to the same email address.
    10. Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
    1. From time to time during the Term, either Party may disclose or make available to the other certain information about its and/or its Affiliates’ business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information which is by its nature confidential or the receiving Party knows, or reasonably ought to know is confidential, whether orally or in written, electronic, or other form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“).
    2. Confidential Information does not include information that, at the time of disclosure: (i) is in the public domain through no fault of the receiving Party; (ii) is known to the receiving Party, free of any confidentiality obligations, at the time of disclosure; (iii) is rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) is independently developed by the receiving Party without use of disclosing Party’s Confidential Information.
    3. The receiving Party shall protect Confidential Information with reasonable care and shall not disclose the other Party’s Confidential Information to any person or entity, except (i) to the receiving Party’s and its Affiliates’ employees on a need to know basis in regard to the Confidential Information or (ii) for the receiving Party to exercise its rights or perform its obligations hereunder, provided that each and any disclosure is protected under terms of confidentiality materially as protective as those set forth herein. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.
    4. The receiving Party shall promptly notify the other Party upon becoming aware of any unauthorized disclosure, access, or use of the Party’s Confidential Information. In this case, the receiving Party shall cooperate with and take all reasonable further steps requested by the other Party to prevent, control, or remedy the situation.
    1. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to Provider IP.
    2. Customer is strictly forbidden from distributing, renting, sub-licensing or transferring access rights granted under this Agreement for resale to third parties (unless expressly stated otherwise), to reproduce, duplicate, copy, modify, adapt, translate, create derivative works and/or develop a service similar to that of Feaniks, based on the Products and/or content belonging to Feaniks to which the Customer and its Users have access, in whole or in part, or to allow a third party to do so.
    3. The rights granted under this Agreement do not authorize Customer and/or its Users to decompile, disassemble or attempt to access the source code of the software that constitute the Products and/or the Platform, except insofar as permitted by applicable law.
    4. It is the Customer’s responsibility to ensure, where applicable, that it has the authorizations and licenses which enable the Products to interact with other software and third-party publisher services that may be used by Customer and not included in the Products.
    5. Customer shall ensure that it does not integrate or connect the Products, to software subject to a license that could (i) create obligations for Feaniks; (ii) grant rights to third parties over intellectual property elements belonging to Feaniks; or (iii) require Feaniks to make all or part of its Service and/or content available under an open source license or any equivalent.
    6. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data solely as necessary for Provider to provide the Products to Customer for the Term of the Agreement.
    7. Feedback. If Customer or any of its Users, employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Provider is free to use such Feedback. To the extent necessary, Customer grants to Provider and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its Products any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the Provider’s Products with no express or implied guarantees or warranties of any kind.
    8. Client Reference. Provider shall be entitled to use the Customer’s name and logo to indicate that Customer is a customer of the Provider provided that the Provider shall comply with any relevant brand guidelines provided by the Customer in relation to use of Customer’s marks. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, and otherwise use and display the Customer’s name and logo for this purpose for the Term of the Agreement.
    1. During this Agreement’s Term, Feaniks may, in its sole discretion, develop the Platform and Products. As this is a SaaS-hosted service, Customer shall automatically benefit from Service developments, provided by updates and version upgrades of the subscribed Service once it has been put into production for all Feaniks Customers.
    2. The Customer acknowledges that these developments are implemented in accordance with a development plan defined by Feaniks. Communication of this plan and any deadlines are always provided on an indicative basis, unless expressly outlined or provided otherwise in the Order Form and any Specific Conditions.
    1. Provider warrants that the Products will conform in all material respects to the service levels set out at Schedule 1 to this Agreement (“Service Levels”) when accessed and used in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Products unless specifically identified in the Service Levels or its Documentation. The foregoing warranty does not apply, and Provider strictly disclaims all warranties, with respect to any third-party products.
    2. Except for the limited warranty set forth in the above section 9.1, the Products and any documentation are provided “as is” and Provider hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Provider specifically disclaims any and all warranties to the maximum extent permitted by applicable law, including without limitation the implied warranties of satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement, and all warranties arising from a course of dealing, usage, or trade practice. Except for the limited warranty set forth in section 9.1, Provider does not warrant, and specifically disclaims, that the Products, the Documentation, or any products or results of the use thereof, will meet Customer’s or any other person’s requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free.
    1. Provider Indemnification
      1. Provider shall defend, indemnify and hold harmless Customer from and against any claim, action or proceeding made or brought against Customer by a third party alleging that any Products infringes or misappropriates such third party’s intellectual property rights.
      2. If any Service is, or in Provider’s opinion, is likely to become the subject of any infringement-related claim, then Provider will, at its expense, and in its sole discretion: (A) modify or replace the infringing technology or material so that the Service, or component or part thereof, becomes non-infringing; or (B) obtain the right for Customer to continue using the affected Service. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
      3. This Section 10.1 will not apply to the extent that the alleged infringement arises, in whole or in part, from: (A) use of the Products in combination with data, software, hardware, equipment, or technology not provided by Provider, if the Products or use thereof would not infringe without such combination; (B) use or modification of the Products by Customer in a manner outside the scope of any right granted or in breach of this Agreement; or (C) Customer Data.
    2. 1. Customer Indemnification.
      1. Customer shall defend, indemnify and hold harmless Provider against any claim, action or proceeding made or brought against Provider that the Customer Data infringes or misappropriates such third party’s intellectual property rights.
      2. This indemnification will not apply to the extent that the alleged infringement arises, in whole or in part, from: (A) Feaniks’s use of the Customer Data in combination with data, software, hardware, equipment, or technology not provided by the Customer, if the Customer Data or use thereof would not infringe without such combination; (B) use or modification of the Customer Data by Feaniks for any purpose other than to provide the Products to the Customer; or (C) the Products or Feaniks’s development of the Products.
    3. Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action; (b) reasonably cooperating and assisting in such defense; and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits liability or otherwise prejudices the indemnified party, without consent.
    4. Sole Remedy. This section 10 sets forth an indemnified party’s sole remedies and the indemnifying party’s sole liability and obligation for any actual, threatened, or alleged claims for which indemnification is sought.
    1. To the extent permitted by applicable law, in no event will either Party and either Party’s Affiliates be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; in each case regardless of whether either party and/or either party’s Affiliates were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will either Party and either Party’s Affiliates’ aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to Provider under this Agreement in the twelve (12) month period preceding the event giving rise to the claim. This limitation will not apply to Customer’s and its Affiliates’ payment obligations under the “price and payment” section above.
    2. Nothing in this Agreement shall limit or exclude either Party’s liability for: (i) death or personal injury resulting from a Party’s negligence; (ii) fraudulent misrepresentation; (iii) damages to third parties under section 10 “indemnification” (iv) a breach of a Party’s confidentiality obligations or (v) loss or damage for which liability cannot be excluded or limited by law.
    1. Term. The Agreement begins on the Effective Date indicated in the Order Form and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the Initial End Date indicated in the Order Form (the “Initial Term“). At the end of the Initial Term, the agreement will automatically renew for successive further periods of 12 months (each a “Renewal Period”) unless the Customer serves notice to terminate the Agreement at least 30 days before the end of the Initial Term or the relevant Renewal Period.
    2. Termination. The Agreement may be terminated by a Party in the event of a material breach by the other Party (including but not limited to a material breach by Provider of the Service Levels)  which is either not capable of remedy or which is not remedied within 30 (thirty) days after formal notice to remedy such breach has been given in accordance with section 13.2 below, to which no formal response has been received, without limiting any further remedies that may be available.
    3. This Agreement is entered into for a fixed term and may only be terminated in advance under the conditions set forth herein. In the case of termination outside of these conditions, all sums owed or remaining to be invoiced shall become immediately due and payable, notwithstanding any damages that may be claimed by the Party that suffers said termination.
    4. The Customer is informed that at the Agreement’s termination, for any and all causes, an irreversible deletion procedure of Customer’s access to the Products and Customer Data will be initiated.
    5. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, administrator, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    6. Where this Agreement is terminated by the Customer for any reason other than convenience, Feaniks will immediately refund the Customer any prepaid fees in respect of Products which have not been enrolled in and used by Authorized Users.
    7. Survival. This Section 12.7 and Sections 1, 2.3, 2.4, 2.7, 4.1, 5.2, 5.5, 5.7, 5.8, 5.10, 6, 7, 9.2, 11 and 13 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement shall survive the expiration or termination of this Agreement.
    1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related (if any) exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. No vendor, distributor, dealer, retailer, sales person or other person is authorized to make any warranty or representation which is different than or in addition to the warranties or representations expressly set forth in this Agreement. Feaniks will not be required to (but may in its sole discretion) perform any software development or provide any new functionality, nor shall Feaniks be bound by any delivery period, other than as and to the extent expressly mentioned in this Agreement. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its exhibits; (ii) second, the exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
    2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice, from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email to Provider at (with confirmation of transmission) and to the email address provided by Customer for this purpose (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    3. Business Ethics. Each Party represents and warrants that it will conduct its business in an ethical manner. During the term of the Contract, each Party hereby declares and warrants:
      1. that it will perform its obligations in compliance with all National, European and International laws and regulations in regard to risk identification, prevention of serious violations of human rights as well as other fundamental rights, and the health and safety of individuals and the environment;
      2. that it will comply with principles of transparency, anti-fraud and anti-corruption when performing their duties under this Agreement in compliance with regulations applicable to this Agreement;
      3. that it will comply with corporate and tax legislation (particularly with regard to the provisions of applicable employment law in regard to bargaining offenses, or those of concealed or clandestine work), and pay in good faith, the corresponding sums (taxes, contributions);
      4. that it will not commit, solicit, or directly or indirectly enable any act or omission that would violate these representations and warranties;
      5. save as otherwise publicly disclosed, that itself, an affiliated entity or any of its officers (current or past) have not been subject to a suspension of business activities, a criminal investigation or conviction, allegations of fraud, misrepresentation, bribery, tax evasion or any other wrongdoing within the past 5 years.
    4. In the event a Party becomes aware in good faith that the other Party is in breach of any of the covenants and/or representations set forth in this Section, the non-breaching Party may immediately terminate this Agreement, effective upon notice, without incurring any liability whatsoever.
    5. Force Majeure. Neither Party will be liable for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay could not reasonably have been foreseen and is caused by any circumstances beyond its reasonable control, including but not limited to acts of God, flood, fire, earthquake, interruption or failure of utility services, explosion, war, terrorism, invasion, riot or other civil unrest, strikes or other labor stoppages (other than one involving a Party’s employees) or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    6. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement: (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement in order to reflect their original intent as closely as possible in a mutually acceptable manner so that the transactions contemplated hereunder may be consummated as originally contemplated to the fullest extent.
    8. Governing Law; Submission to Jurisdiction: This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales. In the event of a dispute, both Parties shall endeavor to find an amicable solution. Each Party agrees that the courts of England and Wales have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.
    9. Export Compliance. The Products may be subject to export laws and regulations of the United States and other jurisdictions. Customer will not permit any User to access or use any Service in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
    10. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if such operation is in favor of a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
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