TERMS OF SERVICE

Updated: 10 September 2024

THESE DEMAND-GENIUS TERMS OF SERVICE ("TERMS OF SERVICE"), TOGETHER WITH ANY ORDER (DEFINED BELOW) AND OUR DATA PROCESSING ADDENDUM INCLUDING ANY DOCUMENT REFERENCED IN ANY OF THE SAME (COLLECTIVELY THE “AGREEMENT”), CONSTITUTES A LEGAL AGREEMENT BETWEEN DEMAND-GENIUS LIMITED (“DEMAND-GENIUS”) AND YOU OR THE LEGAL ENTITY YOU REPRESENT AS IDENTIFIED WHEN YOU REGISTERED THE CUSTOMER’S ACCOUNT FOR THE SERVICES (“CUSTOMER” OR “YOU”). 

PLEASE READ THE AGREEMENT CAREFULLY AS IT GOVERNS YOUR ACCESS TO, AND USE OF, THE SERVICES (DEFINED BELOW) AND ANY RELATED DOCUMENTATION. 

BY CREATING AN ACCOUNT, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES OR ANY RELATED DOCUMENTATION.

1. DEFINITIONS
   1. “Affiliate”: in relation to a company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
   2. “Confidential Information”: all confidential information (however recorded or preserved) disclosed in connection with the Agreement by a party or its Representatives to the other party and that party's Representatives on or after the date the Agreement is entered into, including: (a) the terms of the Agreement; (b) any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, assets, affairs, customers, clients, suppliers, of the disclosing party (or any Affiliate of the disclosing party); and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or any Affiliate of the disclosing party); (c) any information developed by the parties in the course of carrying out its obligations under the Agreement and the parties agree that: (i) details of the Services (including any results of performance tests on the Services) and Documentation shall constitute Demand-Genius Confidential Information; and (ii) Customer Data shall constitute Customer Confidential Information.
   3. “Customer Data”: the data inputted by (or on behalf of) the Customer into the Services or otherwise provided, or made available, to Demand-Genius as part of the Customer's use of the Services.
   4. “Data Processing Addendum” or “DPA”: the Data Processing Addendum available at https://www.demand-genius.com/terms (or such other web address notified by Demand-Genius to the Customer from time to time) which sets out additional terms about the processing of Personal Data in order to meet the requirements of Data Protection Laws.
   5. “Data Protection Laws”: (i) Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (the "EU GDPR"); (ii) the EU GDPR as saved into United Kingdom law by virtue of section 3 of the United Kingdom's European Union (Withdrawal) Act 2018 (the "UK GDPR"); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under, pursuant to or that apply in conjunction with any of (i), (ii) or (iii); in each case as may be amended or superseded from time to time.
   6. “Documentation”: the document(s) made available to the Customer [via www.demand-genius.com/documentation] (or such other web address notified by Demand-Genius to the Customer from time to time) which sets out a description of the Services and any relevant user instructions, as updated from time to time, on condition that such updates do not materially decrease the features or functionality of the Services.
   7. “Fees”: the fees payable by the Customer for the Services, as set out in the applicable Order.
   8. “Intellectual Property Rights”: all copyright, patents, rights in confidential information, know-how, trade secrets, trademarks, trade names, design rights, get-up, database rights, chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case:
      1. whether registered or not;
      2. including any applications to protect or register such rights;
      3. including all renewals and extensions of such rights or applications;
      4. whether vested, contingent or future; and wherever existing.
   9. “Incident”: means any Vulnerability, Virus or security incident which:
      1. may affect the Services;
      2. may affect Demand-Genius' network and information systems, such that it could potentially affect the Customer or Demand-Genius’ other customers.
   10. “Order”: any online or written form or other communication provided by Demand-Genius to the Customer which references these Terms of Service and which evidence the Customer’s subscription to the Services.
   11. “Representatives”: in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers. 
   12. “Services”: the ability to access and use Demand-Genius’s cloud-based services by subscription as described in the applicable Order. Services includes access to Documentation and any applicable Support Services.
   13. “Support Services”: the provision of updates and incident management for the Services (if any) provided by Demand-Genius to the Customer to assist the Customer with any technical and advisory support in connection with the Customer's use of the Services as set out in Order.
   14. “Trial Period” such period of time after the Effective Date (if applicable) as expressly set out in the Order.
   15. “Virus” any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network.
   16. “Vulnerability” a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability.
2. TERM OF THIS AGREEMENT
   1. This Agreement shall commence on the date the Order is accepted by Demand-Genius (“Effective Date”) and continue for the selected subscription term length identified on the Order (including any Trial Period) ("Initial Term"), unless terminated earlier in accordance with the terms of the Agreement. 
   2. Following the Initial Term, the Agreement will be automatically renewed for successive subscription terms of the same length (minus any Trial Period if applicable) (each a "Renewal Period"), unless prior to the end of the Initial Term or Renewal Period (as applicable) the Customer cancels by following the cancellation instructions on the “My Account” section of the Demand-Genius website. The Initial Term and all Renewal Period(s) shall be the "Term".
3. RIGHTS TO USE THE SERVICES AND INTELLECTUAL PROPERTY RIGHTS
   1. The Customer acknowledges and agrees that Demand-Genius and/or its licensors own all Intellectual Property Rights in the: (a) Services; (b) Demand-Genius’s Confidential Information, and (c) all other Demand Genius supplied material provided or developed for use in connection with the Services generally, exclusive of the Customer Data, and in each case all modifications, enhancements, improvements, adaptations and translations to the same. 
   2. Subject to payment of the Fees and the terms of the Agreement, Demand-Genius grants the Customer a non-exclusive, non-sublicensable and non-transferable right (or license as applicable) to access and use the Services during the Term for the Customer’s internal business purposes only, or as may otherwise be set forth in the applicable Order.
   3. The Customer is only granted the limited rights to the Services as described in this Agreement. All rights not specifically granted in this Agreement to the Customer are exclusively reserved to Demand-Genius (or its licensors).
   4. To the extent that the Customer acquires any Intellectual Property Rights in the Services the Customer will, on Demand-Genius’s written demand, assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to Demand-Genius. The Customer shall execute all such documents and do such things as Demand-Genius may consider necessary to give effect to this Clause 3.4 at its own cost.
   5. Demand-Genius confirms that it has all the rights in relation to the Services that are necessary to provide them in accordance with the Agreement.
   6. The Intellectual Property Rights in Customer Data and Customer's Confidential Information are owned by the Customer and the Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data. The Customer grants Demand-Genius a non-exclusive license to: (a) use, copy, store and display the Customer Data for the purpose of providing the Services; and (b) create metadata in relation to Customer Data or the Customer's usage of the Services provided that such metadata is anonymised ("Metadata"). Examples of Metadata include amount of uptime for the Services monthly/annually, number or type of system incidents encountered, trends in usage or popularity of certain features and functionality. For the avoidance of doubt, Demand-Genius shall own all right, title and interest in such Metadata. 
   7. Demand-Genius shall be entitled to use and exploit any suggestions, enhancement requests, feedback or recommendations relating to the Services which are provided by the Customer, its employees, contractors and users to Demand-Genius ("Feedback"). For the avoidance of doubt: (a) the Customer is not obliged to give any Feedback; (b) Demand-Genius is not obliged to act on any Feedback; and (c) Demand-Genius shall own all Intellectual Property Rights in such Feedback.
4. DEMAND-GENIUS’ OBLIGATIONS
   1. Demand-Genius warrants that the Services will be provided with reasonable care and skill and conform in all material respects to the applicable Documentation. The Customer’s sole and exclusive remedies and Demand-Genius’s sole obligations for breach of the warranty in this clause are as follows: Demand-Genius will, at its cost: (a) correct any such non-conformance promptly; (b) provide the Customer with an alternative means of accomplishing the desired performance; or (c) if Demand-Genius is unable, using commercially reasonable efforts, to provide the remedies at clauses 4.2(a) or (b) within a reasonable period of time, Demand-Genius may terminate the non-conforming Services and refund any unused, prepaid Fees for such terminated Services covering the remainder of the current Initial Term or Renewal Period (as applicable).
   2. The warranty at clauses 4.2 shall not apply to the extent of any non-conformance which is caused by: (a) use of the Services contrary to Demand-Genius's instructions (including instructions identified in the Agreement); (b) modification or alteration of the Services by any party other than Demand-Genius or Demand-Genius’s duly authorised contractors or agents; (c) the Customer’s networks or systems; (d) the Customer’s failure to promptly install (or allow to be installed) a revision, update or release provided by Demand-Genius; (e) errors or omissions in any information, instructions or scripts provided to Demand-Genius by the Customer in connection with the Services, or any actions taken by Demand-Genius at the Customer's direction; or (f) any Services that Demand-Genius makes available for testing or demonstration purposes or for which Demand-Genius does not receive a Fee.
   3. Demand-Genius does not warrant that:
      1. the Customer's use of the Services will be uninterrupted or error-free;
      2. the Services, and/or the information obtained by the Customer through the Services, will meet the Customer's requirements;
      3. the Services will be free from Vulnerabilities or Viruses; 
      4. the Services will operate in conjunction with any hardware items or software products other than those that Demand-Genius has expressly identified as being compatible; or
      5. the Services will comply with any of the Customer's cybersecurity requirements.
   4. 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 the Agreement. The Services are provided to the Customer on an "as is" basis. Demand-Genius 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5. CUSTOMER'S OBLIGATIONS
   1. The Customer will (and ensure that its users shall):
      1. co-operate with Demand-Genius and provide all necessary information to allow Demand-Genius to provide the Services;
      2. use the Services in accordance with the terms and conditions of the Agreement;
      3. keep secure all login information for the use of the Services;
      4. comply with all applicable laws and regulations with respect to its usage of the Services;
      5. to the extent permitted by law and except as otherwise expressly provided in the Agreement, be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Demand-Genius’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
      6. ensure that its network and systems comply with any relevant specifications provided by Demand-Genius from time to time.
   2. To the extent permitted by applicable law, the Customer will not (and ensure that its users shall not):
      1. access, store, distribute or transmit any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (b) facilitates illegal activity; (c) depicts sexually explicit images; (d) promotes unlawful violence; (e) is discriminatory; or (f) is otherwise illegal or causes damage or injury to any person or property;
      2. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services in any form or media or by any means;
      3. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form for all or any part of the Services;
      4. access all or any part of the Services in order to build a product or service which competes with the Services;
      5. use the Services to provide services to third parties;
      6. subject to 15.4, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except its authorised users;
      7. attempt to obtain, or assist third parties in obtaining, access to the Services;
      8. access, store, distribute or transmit Viruses or any harmful code during the course of its use of the Services; or
      9. introduce or permit the introduction of, any Virus or Vulnerability into Demand-Genius's (or its subcontractors) network and information systems.

Demand-Genius reserves the right, without liability or prejudice to its other rights, to disable the Customer's access to the Services if Demand-Genius reasonably believes the Customer is in breach of this clause 5.2.

3. The Customer shall use all reasonable efforts to prevent any unauthorised access to, or use of, the Services. Upon discovering any unauthorised access and/or Incidents, the Customer must immediately notify Demand-Genius.
4. The Customer acknowledges that any delay caused by the Customer failing to fulfil any of its obligations under the Agreement may mean that Demand-Genius needs to adjust any agreed timescales and could lead to an increase in the Fees.
5. The Customer shall remain responsible for all breaches of the Agreement by its users.

6. FEES AND PAYMENT
   1. Unless otherwise agreed, the Customer will provide to Demand-Genius valid, up-to-date and complete credit or debit card details. By submitting credit or debit card payment information, the Customer automatically authorises Demand-Genius (without any further reference to the Customer) to charge to such payment instrument all Fees immediately as they are due and/or incurred through the Customer's use of the Services for the duration of the Term.
   2. Where payments are not made by credit or debit card (which will be charged in accordance with clause 6.1), the Customer shall pay each invoice submitted to it by Demand-Genius within 30 days of the date of invoice in full and cleared funds to a bank account nominated in writing by Demand-Genius from time to time.
   3. All amounts and Fees stated or referred to in the Agreement are exclusive of value added tax, goods and service tax, sales tax or other consumption or similar taxes, which shall be added at the appropriate rate.
   4. If Demand-Genius has not received payment before expiry of the due date:
      1. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the Bank of England Base Rate, commencing on the due date and continuing until fully paid, whether before or after judgment; 
      2. Demand-Genius may, without liability to the Customer, stop providing the Services until payment has been made in full; and
      3. Demand-Genius may, without liability to the Customer, terminate the Agreement for the Customer’s material breach if such failure to pay has not been rectified within 30 days after receiving written notice of such breach.
   5. Demand-Genius shall be entitled to increase the Fees payable prior to the start of each Renewal Period upon no less than 14 days prior written notice to the Customer.
7. DATA PROTECTION
   1. The parties shall comply with the provisions and obligations imposed on them by Data Protection Laws at all times when processing personal data in connection with the Agreement.
   2. If Demand-Genius processes any personal data on the Customer's behalf when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the data controller and Demand-Genius shall be a data processor, and that the Data Processing Addendum shall apply. The Data Processing Addendum is incorporated into and forms part of the Agreement. The Data Processing Addendum does not apply to Account Information (defined below).
   3. Demand-Genius’s use of the Customer’s personal data provided to Demand Genius for the purpose of managing the Customer’s account (“Account Information”) shall be in accordance with the Demand Genius’s Privacy Policy available at https://www.demand-genius.com/privacy-policy (or such other web address notified by Demand-Genius to the Customer from time to time), and the Customer consents to such usage.
8. CONFIDENTIALITY
   1. A party receiving Confidential Information under the Agreement (the "Receiving Party") shall maintain the confidentiality of the Confidential Information of the other Party (the "Disclosing Party") and shall not without the prior written consent of the Disclosing Party or in accordance with the Agreement, disclose or copy the Disclosing Party’s Confidential Information other than to the extent necessary in connection with its express rights and obligations under the Agreement.
   2. The Receiving Party:
      1. undertakes to disclose the Disclosing Party’s Confidential Information only to those of its Recipients to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under the Agreement or as otherwise reasonably necessary in connection with the Receiving Party’s express rights and/or obligations under the Agreement; and
      2. shall be responsible to the Disclosing Party for any acts or omissions of such Representative in respect of the confidentiality and security of the Disclosing Party’s Confidential Information as if it were the Receiving Party’s own.
   3. The provisions of this clause 8 shall not apply to information which:
      1. is or comes into the public domain through no fault of the Receiving Party or its Representatives;
      2. is lawfully received by the Receiving Party from a third party free of any obligation of confidence at the time of its disclosure;
      3. is independently developed by the Receiving Party (or any of its Affiliates or any person acting on its or their behalf), without access to or use of such Confidential Information; or
      4. is required by law, by court or governmental or regulatory order to be disclosed, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
   4. Except as expressly stated in the Agreement, no party makes any express or implied warranty or representation concerning its Confidential Information.
   5. The obligations in this clause 8 shall survive the termination or expiry of the Agreement and last for a period of 3 years.
9. SERVICE LEVELS
   1. Demand-Genius shall ensure that:
      1. the Services are available to the Customer at least 99% of the time during the hours of 9:00am to 5:30pm on any business day in England (excluding public or bank holidays) ("Business Hours").
   2. Demand-Genius shall use commercially reasonable efforts to make the Services available to the Customer 24 hours a day, seven days a week, except for:
      1. planned maintenance carried out during the maintenance window of 10.00pm to 2.00am UK time; and
      2. unscheduled maintenance performed outside Business Hours, provided that Demand-Genius uses reasonable endeavours to give the Customer at least 1 business days’ notice in advance.
   3. The service levels identified in this clause 9 shall not apply to any Services that Demand-Genius makes available for testing or demonstration purposes or for which Demand-Genius does not receive a Fee.
10. BETA Services. 
    1. From time to time, Demand-Genius may offer early access programs to use beta versions of the Services (“Beta Services”).  Beta Services are made available to the Customer purely for testing and evaluation purposes, and the Customer may choose to try such Beta Services in its sole discretion and at its sole risk.  Notwithstanding anything to the contrary in the Agreement and to the maximum extent permitted by applicable law:
       1. Beta Services are not covered under any service level agreement;
       2. Demand Genius provides the Beta Services on an “as-is” basis without any warranty, and Demand-Genius disclaims all express or implied warranties, including those at clause 4.2; 
       3. Demand-Genius has no obligation to provide Support Services for Beta Services; and 
       4. the Customer acknowledges that the Beta Services may not be reliable, and Demand-Genius shall not be liable for any damages arising from the use or inability to use the Beta Services.  
    2. Demand-Genius may unilaterally modify or discontinue the Beta Services at any time without notice or liability to the Customer (or not release commercially), and any final commercial versions may be subject to the payment of additional fees.
11. INDEMNITY
    1. Subject to the procedure set out in clause 11.3, the Customer shall defend, indemnify and hold harmless Demand-Genius and its subcontractors against any claim made against it by an unaffiliated third party or any legal action made against it in each case which arises out of, or in connection with: (a) the Customer's breach of clause 5.2; or (b) the Customer Data when used in accordance with the Agreement, directly infringes any third party rights (including Intellectual Property Rights).
    2. Subject to the procedure set out in clause 11.3, Demand-Genius shall defend, indemnify and hold harmless the Customer against any claim made against it by an unaffiliated third-party that the Services when used in accordance with the Agreement, directly infringes a third party's Intellectual Property Rights.
    3. Promptly after a party obtains knowledge of the existence or commencement of a claim or legal action for which it is entitled to be indemnified under clause 11.1 or 11.2 (the "Indemnified Party"),  the Indemnified Party will notify the other party (the "Indemnifying Party") of such claim or legal action in writing, provided, however, that any failure to give such notice promptly will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced or liability increased thereby.  The Indemnifying Party will have exclusive control of the defence and settlement of such claim or legal action; provided, however, that the Indemnified Party may join in the defence and settlement of such claim or legal action and employ counsel at its own expense and will reasonably cooperate with the Indemnifying Party in the defence and settlement of such claim or legal action.  The Indemnifying Party may settle any claim or legal action without the Indemnified Party's written consent unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party; (b) contains an admission of liability or wrongdoing by the Indemnified Party; or (c) imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items.
    4. In the event that Demand-Genius, in its sole discretion, reasonably determines, that the Services (or any portion thereof) infringes, or may infringe, any third party Intellectual Property Rights, Demand-Genius 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 infringing Services and refund any unused, prepaid Fees for such terminated Services covering the remainder of the current Initial Term or Renewal Period (as applicable).
    5. In no event shall Demand-Genius, its employees, agents and sub-contractors be liable to Customer to the extent that the alleged infringement is based on: (a) a modification of the Services by anyone other than Demand-Genius; or (b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Demand-Genius; (c) the combination of the Services, or any portion thereof, with any other third-party software, hardware, service, technology,  content or material not provided by Demand-Genius if infringement would not occur without the combination, unless the Agreement expressly authorizes a combination with that other third party software, hardware, services, technology, content or material; (d) the Customer's use of other than the then most current version of the Services, on condition that the then-most current version was made available to the Customer, to the extent such infringement would have been prevented by the Customer's use of the then-most current version; or (e) any Services that Demand-Genius makes available for testing or demonstration purposes or for which Demand-Genius does not receive a Fee.
    6. The foregoing states the Customer's sole and exclusive rights and remedies, and Demand-Genius's (including Demand-Genius's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any third-party Intellectual Property Rights.
12. LIMITATION OF LIABILITY
    1. Neither party excludes nor limits any liability:
       1. arising under the indemnity provisions in clause 11;
       2. arising as a result of the Customer’s failure to comply with its payment obligations; 
       3. arising as a result of the Customer’s breach, infringement or misappropriation of Demand-Genius’s Intellectual Property Rights;
       4. for personal injury (including sickness and death) to the extent that such injury results from the negligence or wilful default of a party or its employees;
       5. for fraud or fraudulent misrepresentation; or
       6. for any other liability to the extent it cannot be excluded or limited by law.
    2. Subject to clause 12.1, neither party shall be liable to the other whether in tort (including negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.
    3. Subject to clause 12.1, each party’s total aggregate liability to the other party in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement, shall be limited to direct damages up to an amount equal to 100% of the total Fees paid by the Customer during the 12 months immediately preceding the date on which the claim arose (or where a claim arose within the first 12 months, the Fees that would be payable by the Customer to Demand-Genius).
13. TERMINATION
    1. Demand-Genius may terminate this Agreement for any reason with effect from the end of the Initial Term or any Renewal Term (as applicable) by providing not less than [30] days’ prior written notice to the Customer.
    2. Customer may terminate this Agreement immediately and for any reason by following the cancellation instructions on [the “My Account” section of the Demand-Genius website]. For the avoidance of doubt, whilst termination can occur at any time under this clause, the Customer is not entitled to any refund of Fees (including those paid in advance but which relate to the period after termination).
    3. Either party may, without affecting its other rights under the Agreement, by notice in writing to the other party immediately terminate the Agreement if the other:
       1. is in material or persistent breach of any of its obligations under the Agreement and if that breach is capable of remedy and the other has failed to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach;
       2. is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction; or
       3. ceases or suspends, or threatens to cease or suspend, the carrying on of any part of its business.
    4. In the event of termination of the Agreement for any reason:
       1. all rights and licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services; and
       2. Demand-Genius may destroy or otherwise dispose of all Customer Data in its possession unless Demand-Genius receives, no later than 30 days after the effective date of the termination of the Agreement, a written request for the delivery to the Customer of the then most recent back-up of Customer Data (“Return Request”). Demand-Genius shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of a Return Request, provided that the Customer has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination); and 
       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.
    5. Clauses concerning the parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination of the Agreement.  
14. UNCONTROLLABLE EVENTS
    1. Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement (excluding always the Customer’s obligation to pay Fees due under the Agreement) if such delay or failure results from any Uncontrollable Events.
    2. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 45 days, the party not affected may terminate the Agreement by giving 30 days' written notice to the affected party.
    3. In this clause 14, "Uncontrollable Events" means an event outside the party's reasonable control including, without limitation: natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war or armed conflict, nuclear, chemical or sonic boom, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party). 
15. GENERAL
    1. Third party rights: For the purposes of the Contracts (Rights of Third Parties) Act 1999, the Agreement is not intended to and does not give any person who is not a party to it any right to enforce any of its provisions. However, this does not affect any rights or remedy of such a person that exists or is available apart from that Act.
    2. Costs: Each party is responsible for its legal and other costs in relation to the preparation and performance of the Agreement.
    3. Relationship of the parties: The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
    4. Assignment and other dealings: Except as otherwise expressly permitted by the Agreement, neither party shall, without the prior written consent of the other party, assign any right or obligation under the Agreement, in whole or in part. Notwithstanding the foregoing, either party may, at any time, assign any or all of its rights or obligations under this Agreement in whole, without the other party's consent, to any of their Affiliates or in connection with a merger, acquisition, corporate reorganization or sale or all or substantially all of its assets.  
    5. Marketing: The Customer agrees that Demand-Genius may refer to the Customer by name, logo and trademark in Demand-Genius’s marketing materials and website.
    6. Entire agreement: The Agreement, and any document referred to in it, contains the whole agreement between the parties relating to its subject matter and supersedes any prior agreements, representations or understandings between them unless expressly referred to in the Agreement. Each party acknowledges that it has not relied on, and will have no remedy in respect of, any representation (whether innocent or negligent) made but not covered in the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
    7. Conflict: In the event of any conflict or inconsistency between the documents making up the Agreement, they shall prevail in the following order of precedence: (i) the Order, (ii) the DPA (if applicable), (iii) these Terms of Service, (iv) any other document referenced in these Terms of Service.
    8. Variation: No amendment or variation of the Agreement will be valid unless agreed in writing by an authorised signatory of each party.
    9. Severability: If any clause in the Agreement (or part of a clause) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part of it) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this agreement as soon as possible.
    10. Waiver: No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
    11. Export. The parties shall comply with all applicable export and import control laws and regulations.  The Customer shall not directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or permit access to, or use of, the Services to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under applicable export law (collectively, “Prohibited Uses”). The Customer is responsible for screening for Prohibited Uses and obtaining any required licenses, governmental approval, or other authorizations.  Upon learning that any of the Services were diverted contrary to the obligations in this clause, the Customer will immediately notify Demand-Genius.
    12. Notices: Notices under the Agreement must be in writing (including email) and sent to:

• For Demand-Genius: finance@demand-genius.com or such alternative details as may be notified to the Customer in writing from time to time;
• For the Customer: the address and/or email address the Customer provided to register the Customer’s account for the Services. 

Letters sent in the United Kingdom will be deemed delivered 3 business days (excluding English bank holidays), after sending. Emails will be deemed delivered the same day (or the next business day, if sent on a non-business day or after 5pm on any business day at the recipient's location).

13. Interpretation. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa.  The clause headings are for ease of reference only and shall not affect the interpretation or construction of the Agreement. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement and shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision. Except where otherwise expressly agreed, a reference to writing or written including email. Whenever the terms “including” or “include” are used in the Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification.
14. Governing law and jurisdiction: The Agreement is governed by the laws of England and Wales. Without limiting clause 15.15, all disputes under the Agreement will be subject to the exclusive jurisdiction of the courts of England and Wales.
15. Equitable Relief. Notwithstanding anything to the contrary in the Agreement: (a) either party may at any time seek equitable relief (without the necessity of posting a bond), including, without limitation, temporary injunctive relief, in any court of competent jurisdiction; and (b) Demand-Genius, at its option, may pursue any and all remedies available at law and in equity in any court of competent jurisdiction with respect to any claim against the Customer for non-payment under the Agreement.

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