Terms Of Service

FLOORWIZ BY ONFIGR

TERMS OF SERVICE

1 Definitions and Interpretation

1.1 In these Conditions:

Acceptance Criteria meaning the acceptance criteria set out in a particular User Story.

Acceptance Tests the tests that are to be run on the Sprint Results by the Customer as outlined in Schedule 1 under to determine whether each Result complies with its Acceptance Criteria.

Agreement means the agreement between Onfigr and the Customer for the supply of Services incorporating these Conditions and the SOW.

Authorised Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services.

Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

CGI Assets means the 3D models and textures used to create the computer generated images of the Customer’s products which are to be created as part of the Onboarding Costs, as set out in the SOW.

Conditions means Onfigr’ terms and conditions of supply set out in this document.

Confidential Information means any information which the disclosing party notifies to the receiving party at the time of disclosure to be confidential or information which the receiving party ought reasonably to have known is confidential whether expressly told so or not by the disclosing party provided that any confidential information which is already in the public domain (not otherwise in breach of this clause) or already known to the receiving party shall not constitute confidential information, including, without limitation, any information relating to the systems, operations, plans, intentions, market opportunities, potential and actual clients, surveys, know-how, trade secrets and business affairs in whatever form.

Customer means the person who purchases the Services from Onfigr.

Effective Date means the date of the Agreement.

Initial Contract Term means the period of one year (or such other period specified in the SOW) starting from the earlier of: (i) the date that the Customer starts using the Services; or (ii) the date falling six months after the SOW is accepted by the Customer (unless specified otherwise in the SOW).

Normal Business Hours means the hours between 8.30 am to 17.30 pm local UK time, each Business Day.

Onfigr means Onfigr Limited incorporated and registered in England and Wales with company number 15355491 whose registered office is at Unit 16 Heritage Exchange, Wellington Mills Plover Road, Lindley, Huddersfield, West Yorkshire HD3 3HR.

Renewal Period means the period described in clauses 14.2 and 14.3

Onboarding Costs means the fees payable by the Customer to Onfigr for the Onboarding Works, as set out in the SOW.

Onboarding Works means the works to be provided by Onfigr to the Customer to facilitate the Customer in using the Services, as set out in the SOW.

Onboarding Works Start Date the date that the Scene Setup Works shall start, as set out in the SOW.

Services means the services provided by Onfigr to the Customer under these Conditions via any website notified to the Customer by Onfigr from time to time, as more particularly described in the SOW.

Software means the online software applications provided by Onfigr as part of the Services.

SOW means the statement of works in respect of the Services between Onfigr and the Customer.

Contract Fees means the contract fees, payable by the Customer to Onfigr in consideration for the provision of the Services, as set out in the SOW.

Contract Term means the term that the Services are provided for starting from the date that the Onboarding Works are complete (being the Initial Contract Term together with any subsequent Renewal Periods).

Tool means the online software application proprietary to Onfigr, which is to be provided to the Customer as part of the provision of the Services, as set out in the SOW.

Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause headings shall not affect the interpretation of these Conditions.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular; and a reference to one gender shall include a reference to the other genders.

1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Conditions and shall include all subordinate legislation made as at the date of these Conditions under that statute or statutory provision.

1.6 A reference to writing or written includes e-mail but excludes faxes.

2 Application of these Conditions

2.1 These Conditions apply to and form part of the Agreement. They supersede any previously issued terms and conditions of purchase or supply.

2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, confirmation of SOW, specification or other document shall form part of the Agreement except to the extent that Onfigr otherwise agrees in writing. 2.3 Each SOW shall constitute an agreement to supply and purchase Services subject to these Conditions.

3 Onboarding Works

3.1 Onfigr shall carry out the Onboarding Works in accordance with the SOW. Onfigr shall use reasonable endeavours to perform these obligations in accordance with any agreed estimated timescales, but time shall not be of the essence in this regard. The Customer shall provide Onfigr with such reasonable assistance as Onfigr may request from time to time.

3.2 Onfigr assumes no liability for any non-conformance which is caused by use of the Services or the Tool and/or CGI Assets contrary to Onfigr’ instructions.

3.3 The Onboarding Works shall be deemed to be complete and accepted by the Customer upon the earlier of:

3.3.1 the expiry of 10 days following completion of all acceptance tests; and

3.3.2 the use of the Tool by the Customer in the normal course of its business.

4 Access to the Services

4.1 Subject to the Customer paying the Contract Fees in accordance with clause 5.3 and clause 9.1, the restrictions set out in this clause 4 and the other terms of these Conditions, Onfigr hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to use the Services on one website only, during the Contract Term.

4.2 The Customer shall notify Onfigr of the website from which it wishes to be able to access the Services. Onfigr may block any attempts by the Customer to access the Services from any other website. If the Customer wishes to change the website from which the Services will be accessed, it shall notify Onfigr in writing in advance.

4.3 In relation to the Authorised Users, the Customer undertakes that:

4.3.1 each Authorised User shall keep a secure password for their use of the Services, that such password shall be changed no less frequently than once each month and that each Authorised User shall keep his password confidential; and

4.3.2 it shall permit Onfigr or Onfigr’ designated auditor to audit the Services in order to establish the name and password of each Authorised User and Onfigr’ data processing facilities to audit compliance with these Conditions. Each such audit may be conducted no more than once per quarter, at Onfigr’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and

4.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

4.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

4.4.2 facilitates illegal activity;

4.4.3 depicts sexually explicit images;

4.4.4 promotes unlawful violence;

4.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

4.4.6 is otherwise illegal or causes damage or injury to any person or property, and Onfigr reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

4.5 The Customer shall not:

4.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Conditions:

4.5.1.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software (as applicable) in any form or media or by any means; or

4.5.1.2 attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

4.5.2 access all or any part of the Services to build a product or service which competes with the Services;

4.5.3 use the Services to provide services to third parties;

4.5.4 subject to clause 21.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users,

4.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 4; or

4.5.6 introduce or permit the introduction of, any Virus into Onfigr’ network and information systems.

4.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify Onfigr.

4.7 The rights provided under this clause 4 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.

5 Services

5.1 Onfigr shall, during the Contract Term, provide the Services to the Customer on and subject to the terms of these Conditions.

5.2 Onfigr shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

5.2.1 planned maintenance carried out during the maintenance window of 9.00 pm to 5.00 am UK time; and

5.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Onfigr has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.

5.3 The provision of the Services does not include the provision of support services other than any user guides which may be provided by Onfigr to all customers from time to time. Onfigr may provide support services to the Customer if agreed by both parties, on such terms as may be agreed by both parties.

6 Third Party Providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. Onfigr makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Onfigr. Onfigr recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. Onfigr does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

7 Onfigr’ Obligations

7.1 Onfigr undertakes that the Onboarding Works and Services will be performed with reasonable skill and care.

7.2 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Onfigr’ instructions, or modification or alteration of the Onboarding Works or Services by any party other than Onfigr or Onfigr’ duly authorised contractors or agents. If the Onboarding Works or Services do not conform with the foregoing undertaking, Onfigr will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.

7.3 Onfigr does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, or that the Services and/or Documentation will meet the Customer’s requirements.

7.4 Onfigr is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

7.5 The Agreement shall not prevent Onfigr from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Conditions.

7.6 Onfigr warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Conditions.

8 Customer’s Obligations

8.1 The Customer shall:

8.1.1 provide Onfigr with:

8.1.1.1 all necessary co-operation in relation to these Conditions, including but not limited to adherence to the Acceptance Testing Procedure; and

8.1.1.2 all necessary access to such information as may be required by Onfigr,

in order for Onfigr to provide the Onboarding Works and Services, including but not limited to security access information and configuration services;

8.1.2 without affecting its other obligations under these Conditions, comply with all applicable laws and regulations with respect to its activities under these Conditions;

8.1.3 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Onfigr may adjust any agreed timetable or delivery schedule as reasonably necessary;

8.1.4 ensure that the Authorised Users use the Services in accordance with these Conditions and shall be responsible for any Authorised User’s breach of these Conditions;

8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for Onfigr, its contractors and agents to perform their obligations under these Conditions, including without limitation the Services;

8.1.6 ensure that its network and systems comply with the relevant specifications provided by Onfigr from time to time; and

8.1.7 be, to the extent permitted by law and except as otherwise expressly provided in these Conditions, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Onfigr’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

9 Charges and Payment

9.1 The Customer shall pay the Onboarding Costs and Contract Fees to Onfigr for the Onboarding Works and access to the Services (respectively) as set out in the SOW.

9.2 Onfigr shall invoice the Customer:

9.2.1 on the date(s) specified in the SOW for the Onboarding Costs;

9.2.2 upon acceptance by the Customer of the SOW for the Contract Fees payable in respect of the Initial Contract Term; and

9.2.3 subject to clause 14.1, at least 60 days prior to each anniversary of the start of the Initial Contract Term for the Contract Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 7 days after the date of such invoice.

9.3 If Onfigr has not received payment within 7 days after the due date, without prejudice to any other rights and remedies of Onfigr:

9.3.1 Onfigr may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Onfigr shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Bank of England, commencing on the due date and continuing until fully paid, whether before or after judgement.

9.4 All amounts and fees stated or referred to in these Conditions:

9.4.1 shall be payable in Pound Sterling;

9.4.2 are, subject to clause 13.4, non-cancellable and non-refundable;

9.4.3 are exclusive of value added tax, which shall be added to Onfigr’ invoice(s) at the appropriate rate.

9.5 If, at any time whilst using the Services, the Customer exceeds the maximum number of sessions per month specified in the SOW, Onfigr shall charge the Customer, and the Customer shall pay, Onfigr’ then current excess usage fees.

9.6 Onfigr shall be entitled to increase the Contract Fees at the start of each Renewal Period upon 90 days’ prior notice to the Customer.

10 Intellectual Property Rights

10.1 The parties acknowledge and agree that the Customer (and/or its licensors) owns all Intellectual Property Rights subsisting in the objects which are the subjects of the CGI Assets, and the Customer’s websites and computer systems.

10.2 The Customer acknowledges and agrees that Onfigr and/or its licensors own all intellectual property rights in:

10.2.1 the tools and know-how used to carry out, and the products of, the Scene Setup Works;

10.2.2 the CGI Assets; and

10.2.3 the Services.

10.3 Except as expressly stated herein, the Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services.

10.4 Onfigr confirms that it has all the rights in relation to the Onboarding Works and Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.

11 Confidentiality

11.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, clients, consultants or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 11.2.

11.2 Each party may disclose the other party’s Confidential Information:

11.2.1 to its employees, officers, representatives 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 these Conditions. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 11; and

11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3 No party shall 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 these Conditions.

12 Indemnity

12.1 The Customer shall defend, indemnify and hold harmless Onfigr against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:

12.1.1 the Customer is given prompt notice of any such claim;

12.1.2 Onfigr provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

12.1.3 the Customer is given sole authority to defend or settle the claim.

12.2 Onfigr shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Services in accordance with these Conditions infringes any United Kingdom patent effective as of the Onboarding Works Start Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgement or settlement of such claims, provided that:

12.2.1 Onfigr is given prompt notice of any such claim;

12.2.2 the Customer provides reasonable co-operation to Onfigr in the defence and settlement of such claim, at Onfigr’ expense; and

12.2.3 Onfigr is given sole authority to defend or settle the claim.

12.3 In the defence or settlement of any claim, Onfigr may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall Onfigr, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12.4.1 a modification of the Services by anyone other than Onfigr; or

12.4.2 the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by Onfigr; or

12.4.3 the Customer’s use of the Services after notice of the alleged or actual infringement from Onfigr or any appropriate authority.

12.5 The foregoing and clause 13.4 state the Customer’s sole and exclusive rights and remedies, and Onfigr’ (including Onfigr’ employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13 Limitation of Liability

13.1 Except as expressly and specifically provided in these Conditions:

13.1.1 the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. Onfigr shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Onfigr by the Customer in connection with the Onboarding Works, Services, or any actions taken by Onfigr at the Customer’s direction;

13.1.2 all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Conditions; and

13.1.3 the Onboarding Works and Services are provided to the Customer on an “as is” basis.

13.2 Nothing in these Conditions excludes the liability of Onfigr:

13.2.1 for death or personal injury caused by Onfigr’ negligence; or

13.2.2 for fraud or fraudulent misrepresentation.

13.3 Subject to clause 13.1 and clause 13.2, Onfigr shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:

13.3.1 loss of profits;

13.3.2 loss of business,

13.3.3 depletion of goodwill and/or similar losses;

13.3.4 loss or corruption of data or information;

13.3.5 pure economic loss; or

13.3.6 for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.

13.4 Onfigr’ total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with:

13.4.1 the performance or contemplated performance of the Scene Setup Works shall be limited to the total Onboarding Costs;

13.4.2 these Conditions shall be limited the total Contract Fees paid for access to the Services during the 12 months immediately preceding the date on which the claim arose.

14 Term and Termination

14.1 The Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the date that the SOW is agreed, and shall continue until the end of the Initial Contract Term.

14.2 At the end of the Initial Contract Term, the Agreement shall be automatically renewed for subsequent renewal terms of successive periods of 12 months (each a Renewal Period), unless either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Contract Term or any Renewal Period, in which case the Agreement shall terminate upon the expiry of the applicable Initial Contract Term or Renewal Period.

14.3 The Initial Contract Term together with any subsequent Renewal Periods shall constitute the Contract Term.

14.4 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

14.4.1 the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

14.4.2 the other party commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;

14.4.3 the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions;

14.4.4 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

14.4.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.4.6 a petition is filed, a notice is given, a resolution is passed, or an SOW is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

14.4.7 an application is made to court, or an SOW is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

14.4.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

14.4.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

14.4.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;

14.4.11 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.4.4 to clause 14.4.10 (inclusive); or

14.4.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.5 On termination of the Agreement for any reason:

14.5.1 all licences granted under these Conditions shall immediately terminate and the Customer shall immediately cease all use of the Onboarding Works and/or Services;

14.5.2 each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party; and

14.5.3 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

15 Force Majeure

Onfigr shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Onfigr or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, pandemic or epidemic including its consequences (such as government act, trade embargo, quarantine, import restriction, building closure, personnel sickness or requirement to self-isolate, lockdown, or other restriction on workers and/or usual business operations), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16 Variation

No variation of the Agreement shall be effective unless it is in writing and agreed by both parties (or their authorised representatives).

17 Waiver

No failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18 Rights and Remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19 Severance

19.1 If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20 Entire Agreement

20.1 The Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

20.2 Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in these Conditions.

21 Assignment

21.1 The Customer shall not, without the prior written consent of Onfigr, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

21.2 Onfigr may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

22 No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23 Third party rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24 Notices

24.1 Notices may be given, and are deemed received:

24.1.1 by hand to its registered office: on receipt of a signature at the time of delivery;

24.1.2 by recorded post to its registered office: at 9.00 am on the second Business Day after posting;

24.1.3 by email to Onfigr at [email protected] and to the Client at the email address provided upon entering the Agreement: at 9.00 am on the first Business Day after sending.

25 Governing law and jurisdiction

25.1 The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

1. In each Sprint, promptly following the delivery of the Sprint Results by the Supplier, the Customer shall undertake the Acceptance Tests to determine whether the Sprint Results have met their respective Acceptance Criteria. The Supplier shall ensure that the Sprint Results are delivered to the Customer to meet the timescales required in each Sprint, including by allowing the Customer sufficient time to perform such Acceptance Tests prior to the Sprint Review Meeting.
2. The Customer shall carry out the Acceptance Tests using the Acceptance Criteria within 1 (one) Business Day of delivery of the Sprint Results, at a time to be agreed with the Supplier. The Customer shall permit Supplier to attend and observe the Acceptance Tests.
3. The Customer shall not unreasonably withhold or delay its agreement that any particular Sprint Result meets its Acceptance Criteria.
4. Where following the performance of the Acceptance Tests, any Sprint Results do not meet their corresponding Acceptance Criteria (each a “Failure”):
5. the parties will discuss the cause and reason of each Failure as part of the Sprint Review Meeting;
6. each Sprint Backlog Item that is a Failure shall be returned from the Sprint Backlog back to the Product Backlog for potential reselection in a future Sprint. Such revised Product Backlog Item may take the form of a User Story or a Defect, in each case as appropriate for the Failure. Where such Sprint Backlog Item is returned to the Product Backlog as a User Story, the Resource Points applicable to such User Storyshall be adjusted by the Supplier to reflect any reduction of the amount of effort now needed to successfully deliver such User Story in a future Sprint; and
7. where the Failure(s) mean that the Minimum Commitment has not been met, the remedy set out in clause 6.13 for failing to meet such Minimum Commitment shall apply.