Sunlight.io Master Agreement
This Agreement is made between (i) OnApp Limited trading as Sunlight.io of The Cooperage, Old Truman Brewery, 91 Brick Lane, London E1 6QL, United Kingdom (“we”, “our”, “us”, “Sunlight.io”); and (ii) the entity set out in the ‘your details’ section of the attached Order (“you”, “yours”, “Customer”). By executing an Order, you agree to the terms and conditions set out in this Agreement.
1. Definitions and Interpretation.
1.1 Where used in this Agreement, the following capitalized words and phrases shall have the meaning given to them in this section:
“Agreement” means this Master Agreement, the Order, the AUP, the DPA, the Support Policy and any additional specifications we may provide (or set out in the Order) in connection with the Sunlight Solution;
“AUP” means the acceptable use policy available at https://sunlight.io/legal/archive/acceptable-use-policy-V1 as the same may be updated from time to time;
“DPA” means the Data Processing Terms available at https://sunlight.io/legal/archive/data-processing-agreement-V1 as the same may be updated from time to time;
“Intellectual Property Rights” or “IPRs” means without limitation, all present and future rights title and interest (as the same may be extended or amended) throughout the world in to or arising out of all forms of intellectual property including: (i) any national or international patent and any and all re-issues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask work registrations; (iv) all trade names, logos, common law trademarks and service marks; trademark and service mark registrations, goodwill, business names and domain names; (v) all so-called ‘sui generis’ rights (otherwise known as database rights); (vi) all rights in registered and unregistered designs; (vii) any other proprietary rights anywhere in the world and all rights or forms of protection having equivalent or similar effect to any of the foregoing; (viii) applications for the grant of any of the foregoing anywhere in the world, and all other rights corresponding thereto throughout the world together with and all rights of registration, extension and renewal thereof; and (ix) the right to bring legal proceedings to enforce any of the foregoing rights;
“Order” means the written Sunlght.io order form that forms part of this Agreement and sets out, amongst other things, your company details, the details of your Sunlight Solution and the relevant payment information;
“Sunlight Application” means, both individually and collectively, the Sunlight software (in object code form only) and documentation, materials, media, data, files, and/or services related to the Sunlight Application, as updated and upgraded from time to time by us;
“Sunlight Application Specification” means the specification document available at https://sunlight.io/legal/archive/application-specification-V1 that describes the specification of the Sunlight Application, as the same may be updated by us from time to time;
“Sunlight Hardware” means the hardware or equipment described in the Order that we may provide to you under this Agreement to use and run the Sunlight Application on (as such Sunlight Hardware may be repaired or replaced by us from time to time in accordance with the terms of this Agreement);
“Sunlight Hardware Retention Fee” means the fee payable by you to us on demand where you fail or otherwise elect not to return the Sunlight Hardware as described in clause 7.3;
“Sunlight Solution” means the Sunlight Application, Sunlight Hardware (where applicable) and any support or other services provided to you by or on behalf of Sunlight.io as described in the applicable Order; and
“Support Policy” means the support document available at https://sunlight.io/legal/archive/support-policy-V1 that describe the support that Sunlight.io may provide to you in respect of the Sunlight Solution, as the same may be updated by us from time to time.
1.2 In this Agreement reference to the words “other”, “include(s)” or “including” or similar words and phrases shall be construed without limitation to the generality of the preceding words.
1.3 Unless the Order specifically states otherwise, if there is an inconsistency between any of the documents comprising the Agreement, the following, descending order of precedence shall apply: (i) the Order; (ii) this Master Agreement; (iii) the AUP; (iv) the DPA; and (v) the Support Policy.
2. Agreement and Structure.
2.1 This Agreement applies to the Sunlight Solution. The Agreement wholly and exclusively sets out all the terms and conditions applicable to:
2.1.1 your use of and operation of the Sunlight Solution;
2.1.2 where applicable, our provision of and your use of the Sunlight Hardware as part of the Sunlight Solution; and
2.1.3 any support that we may provide to you as per the applicable Order.
2.2 You may purchase/licence the Sunlight Solution by executing a written Order, that is also executed by us. Sunlight.io shall be free to accept or decline each Order in its own discretion. Where an Order is agreed between us, you warrant that you have validly entered into the Order and that your signatory has the power and authority to do so.
2.3 Each Order incorporating the terms of this Agreement is a separate contract between the parties and constitutes the whole agreement between the parties concerning the Order that forms part of it and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of that Order.
2.4 Any documents or terms issued by you, including any purchase order, shall be for your internal administrative purposes only and, regardless of what they may say otherwise, will have no contractual force or effect on us and shall not operate to govern our relationship or modify our Agreement with you.
3.1 The Agreement shall commence on the date of the last signature of the Order and shall continue in full force and effect for the term set out in the Order unless and until earlier lawfully terminated in accordance with its terms (“Initial Term”).
3.2 Upon expiry of the Initial Term, and subject to earlier termination in accordance with the provisions of this Agreement, the Order shall automatically continue thereafter on a rolling basis (“Renewal Term”) until either party terminates the Order on 30 days’ written notice to the other party, (the Initial Term and Renewal Term, collectively the “Term”).
4. Licence. We hereby grant you a licence to use the Sunlight Solution for the Authorised Purposes for the Term of the Agreement, and subject to the terms of this Agreement. The foregoing licence is: (i) revocable; (ii) for the duration of the Term only; and (iii) non-exclusive, non-transferable, and non-sub-licensable. The foregoing licence only permits you to use the Sunlight Solution for your internal business operations purposes (“Authorised Purposes”). The Authorised Purposes do not include the right to use of the Sunlight Solution (i) in violation of applicable laws; (ii) for any purpose prohibited by applicable laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology; (iii) for purposes restricted by the AUP; or (iv) in breach of the licence restrictions in clause 5) or 7.1 (if applicable).
5. Licence Restrictions. Save as expressly provided in this clause 5, this Agreement grants no rights to you in respect of any source code of the Sunlight Solution. You shall not reverse engineer, reverse assemble, disassemble or decompile any computer program owned or controlled by us or our licensors (including, the object code in the Sunlight Solution) except to the extent restriction of the foregoing is prohibited by applicable law. You shall not copy, modify, adapt or otherwise create any derivate work from the Sunlight Solution supplied under this Agreement which may only be used in the manner and to the extent expressly provided for in it and not otherwise, and all rights not expressly granted by us are hereby reserved. You will not attempt to interfere with the proper working of the Sunlight Solution and, in particular, you must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt the Sunlight Solution. You will not, and will not allow any third party to, use, or authorise or permit any other person to use, the Sunlight Solution in any manner which infringes any law or regulation or which infringes the rights of any third party under applicable laws. You shall not transfer, sell, lease, lend, disclose, use for timesharing or service bureau purposes or otherwise seek to commercialise the Sunlight Solution. The Sunlight Solution may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source Software”), which Open Source Software may have applicable license terms. Notwithstanding anything to the contrary herein, use of the Open Source Software shall be subject to the license terms and conditions applicable to such Open Source Software, to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to You hereunder, but may contain additional rights).
6. Licence Keys. During the Term of this Agreement, we may provide you with one or more licence keys that you will be required to input into the Sunlight Solution in order to activate or maintain your Sunlight Solution. Such licence keys (i) may be of shorter or longer duration than the Term of this Agreement; (ii) are for your use only; and (iii) are confidential and should not be shared with any other person. You acknowledge and agree that a failure by you to input or update a licence key may result in the suspension of and an inability by you to access the Sunlight Solution. We reserve the right to not issue new licence keys or allow existing licence keys to expire where you have failed to comply with your obligations described in this Agreement, including but not limited to your obligations to pay the Fees when due.
7. Sunlight Hardware: Where the Order states that Sunlight Hardware is being provided by us, the following terms in this clause 7 shall apply in relation to the Sunlight Hardware we provide to you.
7.1 Sunlight Hardware Usage. You may only use the Sunlight Application on the Sunlight Hardware and for the purposes of the licence granted in clause 4, the Authorised Purposes do not include the right to use of the Sunlight Application on hardware that we have not provided under this Agreement, including on any virtualised environment.
7.2 Sunlight Hardware Loan. We agree to lend the Sunlight Hardware to you for the Term. Save as described in clause 7.3, you will not acquire title to the Sunlight Hardware at any time. We will deliver the Sunlight Hardware to you at the location nominated in the relevant Order (“Location”). The delivery dates set out in the Order are estimates and subject to change and delay. You agree to inspect the Sunlight Hardware on delivery and immediately inform us of any damage to such Sunlight Hardware and if the Sunlight Hardware is otherwise not in working order. You agree to keep the Sunlight Hardware at the Location for the Term and to use it solely and exclusively for your use of the Sunlight Application for the Authorised Purposes in accordance with terms of this Agreement. You may not change the Location without obtaining our prior written consent. You must not use the Sunlight Hardware to modify, operate or access any software other than the Sunlight Application and software within the Sunlight Application. You agree to: (i) use the Sunlight Hardware in a skilful and proper manner by trained personnel and in accordance with any operating instructions issued by us; (ii) make no alteration, and not remove or replace any components from the Sunlight Hardware; (iii) keep the Sunlight Hardware at the Location in your possession and not transfer, sell, assign, sub-licence, pledge, encumber or otherwise dispose of, or encumber the Sunlight Hardware whether in whole or in part; and (iv) indemnify us on demand against any loss or damage to the Sunlight Hardware while in your possession or at your risk, ordinary wear and tear excepted.
7.3 Sunlight Hardware Return. At the end of the Term or upon earlier termination of this Agreement, you shall prepare the Sunlight Hardware for return to us, by deleting your proprietary data, disconnecting, adequately repackaging and making it ready and arranging for collection by us (or our authorised representatives). You shall arrange for such collection as per our reasonable instructions and provide to us all relevant tracking numbers for the Sunlight Hardware once collected. You acknowledge that we will continue to invoice you the Fees until the Sunlight Hardware has been collected by us (or our authorised representatives) in accordance with this clause and the Term shall be deemed extended accordingly. You shall retain evidence of the state of the working order of and any damage to the Sunlight Hardware immediately prior to collection by us (or our authorised representatives) and provide this to us upon request. We will inspect the Sunlight Hardware promptly upon its return to us to confirm whether the Sunlight Hardware is in working order and has not been damaged. You agree to indemnify us on demand against any costs incurred by us or other loss or damage to the Sunlight Hardware (i) as a result of your failure to comply with your obligations in this clause 7.3; and (ii) as described in clause 7.4. Where you fail to make the Sunlight Hardware available to us (or our authorised representatives) as described in this clause at the end of the Term or upon earlier termination of this Agreement, we may invoice you and you shall pay the Sunlight Hardware Retention Fee set out in the Order, or if no fee is included, then the Sunlight Hardware Retention Fee shall be $8,000 per node. Upon receipt by us of payment from you of the Sunlight Hardware Retention Fee in full under this clause 7.3, title in the relevant Sunlight Hardware will transfer to you. The amounts payable under this clause exclude any applicable VAT any other sales tax which shall be payable by you at the rate, and in the manner, prescribed by law.
7.4 Sunlight Hardware Risk. We shall pay for the delivery and collection of the Sunlight Hardware to/from the Location at the start/end of the Term at our cost and risk. Risk in the Sunlight Hardware passes to you on delivery and remains with you until collection by, or on behalf of, us. You must notify us immediately of the loss or damage of the Sunlight Hardware or if the Sunlight Hardware otherwise ceases to be in working order. You agree to pay for and indemnify us on demand against the cost of repairs or replacement required as a result of any damage, loss or destruction (excepting fair wear and tear) of the Sunlight Hardware prior to its return to us as described in clause 7.3. Only us or our representatives may repair, inspect, replace, maintain or remove any Sunlight Hardware from the Location.
8. Customer Hardware. Where the Order states that Sunlight Hardware is not being provided by us, and you are providing or otherwise sourcing your own hardware on which to run the Sunlight Application, the provisions in this clause 8 shall apply to you.
8.1 Minimum Requirements. You may only use the Sunlight Application on hardware that meets the minimum requirements described in the Order. Where you fail to procure hardware that meets such minimum requirements, the Sunlight Solution may not operate correctly or as intended (whether in whole or in part), and to the maximum extent permitted by law, we disclaim any responsibility or liability to you under this Agreement for such use by you.
8.2 Hardware Responsibility. We have no responsibility for or in connection with the hardware which you use to operate the Sunlight Application and we are not holding ourselves out as having any liability in connection with such hardware and we hereby disclaim any liability arising out of or in connection with such hardware. We assume no obligation to support any hardware that you use to operate the Sunlight Application.
9. Support. Where set out in the Order, we may provide reasonable assistance and/or support as part of the Sunlight Solution in accordance with the applicable Support Policy. If we are providing support to you, we shall use our reasonable endeavours to support your use of the Sunlight Solution for the Authorised Purposes in accordance with the Support Policy provided you are in full compliance with the Agreement at all times and promptly comply with our reasonable instructions. At our discretion, we may make available to you modifications, changes, updates, and upgrades to the Sunlight Application (“Modifications”) and you agree that you shall promptly implement them. You shall have sole responsibility for protecting and backing-up data and other information that may be affected by such Modifications. Any additional professional services from Sunlight.io will be subject to separate terms and conditions and charges. If you use the Sunlight Application to process information (“Content”), Sunlight.io has no responsibility for or in connection with the Content and does not hold itself out as having any liability in connection with the Content and hereby disclaims any liability arising out of or in connection with the Content.
10. Your Obligations. We may inform you in writing of certain activities that are prohibited following which you will not perform nor authorise others to perform them. You understand that software/system changes may adversely impact on the interoperability of the Sunlight Solution. The Sunlight Solution is not directed at nor intended for distribution to, or use by, any person in any country or jurisdiction where such distribution or use would be contrary to local law or regulation. You agree to comply with the Agreement and all applicable laws and regulations when using the Sunlight Solution. You agree that no data, information, product and/or materials resulting from your use of the Sunlight Solution will be exported, directly or indirectly, in violation of applicable laws, or will be used for any purpose prohibited by applicable laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. It is your responsibility to comply with any local law or regulation to which you are subject. You agree to grant us (or our representatives) the right to enter your premises (or, where applicable, the Location) to (i) carry out any of our obligations or remedies set out in this Agreement during business hours on reasonable notice, including (but not limited to) deleting the Sunlight Application and/or any data or delivering, inspecting, replacing, removing, repairing or maintaining the Sunlight Hardware (where applicable); and (ii) verifying your compliance with the terms of this Agreement. You are responsible for protecting and backing-up any data you use in conjunction with the Sunlight Solution. You are responsible for the acts and omissions of all users you allow to access and use of the Sunlight Solution on your behalf, and for the purposes of this Agreement, such acts and omissions of your users shall be deemed to be your acts and omissions.
11. Fees. As consideration for the supply of the Sunlight Solution by or on behalf of Sunlight.io, you shall pay Sunlight.io the fees set out in the relevant Order (“Fees”) at the times and in the manner specified in the Order. Unless stated otherwise in the relevant Order: (i) all Fees shall be paid within the payment period described on the Order. Such payment period shall run from of the date of our invoice for the Fees; and (ii) if you fail to make any payment of the Fees in full by the applicable due date, and do not remedy this within 7 days of receiving notice from us, (without prejudice to any other rights we have under this Agreement) we may (A) charge interest in respect of the overdue amounts at the rate of 1% per month (accruing until payment of the overdue amounts); and/or (B) suspend your access to the Sunlight Solution as described in Clause 15 . You agree to pay the undisputed portion of any disputed invoice pending resolution of any dispute. A dispute over one invoice shall not entitle you to delay or dispute payment in respect of another invoice or Sunlight.io service or agreement. Sunlight.io may increase the Fees on renewal of any Order. All amounts payable by you are exclusive of all sales taxes, use, excise, import or export, value added, governmental permit fees, license fees, and customs. If you are legally obliged under applicable tax law to withhold any amount of any payment to us, then the amount of the payment shall be automatically increased to totally offset such tax, so that the amount actually remitted to us, net of all taxes, equals the amount invoiced or otherwise due. You will promptly furnish us with the official receipt of payment of these taxes to the appropriate taxing authority. You may provide us with a certificate of exemption acceptable to an applicable taxing authority. All payments made by you must be received by us in cleared funds by the due date for which purpose time shall be of the essence. No payments due to us shall be subject to any setoff, counterclaim, withholding or deduction except as is mandatory under applicable law and subject to the other provisions of this Agreement. We shall be entitled to set off and cross-collateralise between each of your balances if more than one.
12. Warranties. We warrant that for the Term of this Agreement:
12.1 the Sunlight Application will substantially conform in all material respects with the Sunlight Application Specification. In the event of a breach of the foregoing warranty, our sole obligation, and your exclusive remedy, shall be for us to use commercially reasonable endeavours to correct such non-conformity as part of a generally available future modification of the Sunlight Application. The warranty set forth in this clause 12.1 does not apply if the Sunlight Application or any portion thereof: (a) has been altered, except by us or on our behalf; (b) has been used in a manner that is improper, unauthorised or illegal, or (c) has not been updated or upgraded to the latest available version; or (d) has been combined with any other software.
12.2 where we are providing Sunlight Hardware as described in the Order, the Sunlight Hardware will substantially conform in all material respects with the specification described in the Order. In the event of a breach of the foregoing warranty, our sole obligation, and your exclusive remedy, shall be for us to replace or repair (at our option) the defective Sunlight Hardware in accordance with the Support Policy. The warranty set forth in this clause 12.2 does not apply if the Sunlight Hardware: (a) has been relocated from the Location without our written consent; (b) has been used in a manner that is improper, unauthorised or illegal; or (c) has been repaired or maintained other than by us or on our behalf; or (d) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (e) clause 8 applies.
13.1 You shall indemnify us on demand and hold us harmless from and against all losses, damages, claims and expenses suffered by us (including reasonable legal and other professional fees) that are directly or indirectly caused by your actual or threatened violation of any applicable laws, your infringement of any third party IPRs, personal data or privacy rights, or violation by you of clause 4 or clause 5 of this Agreement.
13.2 Sunlight.io shall at its own expense defend you or, in its sole and absolute discretion, settle any claim or action brought against you alleging that the possession or use of the Sunlight Application in accordance with the provisions of this Agreement infringes within the UK and/or the EU the patent, copyright or registered trade mark rights of a third party (“Claim”) and shall be responsible for the losses, damages, costs and expenses (including reasonable legal fees) agreed to by Sunlight.io in full and final settlement of such Claim or finally awarded against you by a court of competent jurisdiction in satisfaction of such Claim and not capable of further appeal, provided that in no event shall we be liable to you to the extent that the Claim arises out of or in connection with: (i) the possession or use of the Sunlight Application by you other than in accordance with the provisions of this Agreement; (ii) use of the Sunlight Application in combination with any hardware or software not supplied or specified by Sunlight.io, if the infringement would have been avoided by the use of the Sunlight Application not so combined; (iii) use of a non-current release of the Sunlight Application; (iv) a modification of the Sunlight Application by anyone other than Sunlight.io; or (v) your use of the Sunlight Application or related documentation after you became aware of the Claim.
13.3 Our indemnification obligations in respect of Claims under this clause 13 are conditional on you: (i) as soon as reasonably practicable, giving written notice of the Claim to Sunlight.io, specifying the nature of the Claim in reasonable detail; (ii) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Sunlight.io (such consent not to be unreasonably conditioned, withheld or delayed); (iii) giving us and our professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable Sunlight.io and its professional advisers to examine them and to take copies (at our expense) for the purpose of assessing the Claim; and (iv) taking such action as we may reasonably request to avoid, dispute, compromise or defend the Claim.
13.4 If any Claim is made, or in our reasonable opinion is likely to be made, we may at our sole and absolute discretion and expense: (i) procure for you the right to continue using the Sunlight Application in accordance with this Agreement; (ii) modify the Sunlight Application so that it ceases to be infringing; (iii) replace the Sunlight Application with non-infringing software; or (iv) terminate the affected Order by notice in writing to you and refund any pre-paid unused Fees. If we modify or replaces the Sunlight Application, you shall have the same rights in respect thereof as you had in relation to the replaced version of the Sunlight Application.
13.5 Subject to clauses 14.1 to 14.3 and 14.5, clauses 13.2 to 13.4 inclusive constitute your exclusive remedy, and our entire liability, in respect of Claims.
14. Limitations, Exclusions and Disclaimers of Liability.
14.1 Except as set out in clause 13 above, and subject to clause 14.2 below, this clause 14 sets out the sole rights and remedies and the entire financial liability and obligation of us to you (including any liability for the acts or omissions of our employees, officers, agents, consultants and subcontractors) to the other in respect of: (i) any breach of this Agreement; (ii) any use of the Sunlight Solution; and (iii) any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
14.2 Nothing in this Agreement limits or excludes your payment obligations (including under any indemnity) or for your breach of clause 4 or clause 5, or the liability of either party for death or personal injury resulting from its negligence; or for fraud including fraudulent misrepresentation or for any other liability that cannot be limited or excluded by law.
14.3 Subject to clause 14.2, neither party shall be liable for loss of profits, loss of business and/or business opportunity, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of contract, loss of use, loss of or corruption of data or information, property damage, cost of substitute goods or services or for any special, indirect, consequential, costs, damages, charges or expenses, or for pure economic loss, even if it is aware of the circumstances in which they could arise.
14.4 Except with respect to payment and indemnification obligations, neither party will be liable for, or be considered to be in breach of, or in default under, this Agreement, as a result of any cause or condition beyond such party’s reasonable control.
14.5 To the maximum extent permitted by applicable law, and except as expressly provided otherwise in this Agreement, the Sunlight Solution is provided “as is” without any warranty, and your access to and use of the Sunlight Solution is solely at your own risk. Sunlight.io does not warrant that the Sunlight Solution, or any part of it, will be fit for purpose, meet your requirements or that access or operation of the Sunlight Solution will be uninterrupted or error-free or completely secure or that they will operate in combination with other hardware or software products or services. To the fullest extent permissible under applicable law, except as expressly set out otherwise in this Agreement, we disclaim all representations and warranties, express, implied, and statutory, concerning the Sunlight Solution or otherwise related to this Agreement, including, but not limited to, the implied warranties of satisfactory quality and fitness for a particular purpose, and any statutory warranties of non-infringement.
14.6 Subject to clauses 14.1 to 14.5 and 14.7, our maximum aggregate liability to you whether in contract, tort (including negligence) or otherwise, arising out of or in connection with this Agreement shall in no event exceed the total fees paid or payable under the relevant Order in the twelve months preceding the incident first giving rise to liability.
14.7 You are responsible for verifying the accuracy of any output from the Sunlight Solution. You alone are responsible for data and content transferred using the Sunlight Solution and shall maintain an appropriate backup of all such items. Any material accessed, downloaded or otherwise obtained or used by means of the Sunlight Solution shall be used solely at your own discretion and risk.
15. Suspension. Without prejudice to any other rights or remedies which the parties may have, if you fail to comply with any of the terms in this Agreement, including your payment obligations, we shall have the right to immediately suspend or disable your ability to access the Sunlight Solution (including as described in Clause 6), without any liability to you. At our sole option, if we have so suspended or disabled your access, we may (i) retrieve the Sunlight Hardware (where applicable); and/or (ii) and delete all Content that you may have stored or collected as part of your use of the Sunlight Solution, with the effect that it shall be irretrievably lost to you and/or us.
16. Termination. An Order may be terminated by either party as follows: (i) immediately upon giving notice to the other if the other party commits a material breach of the Agreement which is irremediable or, if capable of being remedied, is not remedied within 30 days of receipt of a notice from the other party requiring it to be remedied; (ii) immediately by written notice if the other should become insolvent or otherwise unable to pay its debts as and when they fall due, or should have appointed to it a liquidator, receiver or an administrator, or should enter into an arrangement with its creditors or have presented against it a petition for its winding up, (other than for the purposes of the effecting a solvent reorganisation), which it does not promptly apply to have set aside, or be ordered to be wound up or liquidated or for any other reason cease or threaten to cease trading or business; or (iii) as described in clause 3.2 (termination for convenience). Where an Order is terminated in accordance with this Agreement, then unless stated otherwise in that Order, we shall be entitled to invoice you for all the applicable Fees set forth in that Order for the remainder of the Term. Upon either the expiry, suspension or termination of the Agreement : (i) your rights to use the Sunlight Solution shall cease and you acknowledge and agree that the Sunlight Solution (including Sunlight Hardware, where applicable) may be automatically disabled and cease to operate (unless, in relation to the Sunlight Hardware, you have paid the Sunlight Hardware Retention Fee); (ii) unless you have agreed in writing to pay the Sunlight Hardware Retention Fee or agreed a separate written arrangement with us in relation to the Sunlight Hardware, you shall promptly prepare the Sunlight Hardware for return to us in accordance with clause 7.3; and (iii) you shall immediately cease using our IPRs and all other Confidential Information and promptly destroy or return to us all copies as we may request. Upon request you shall provide us with written confirmation as to whether you have complied with such destruction/return requirements as required by this Agreement. The termination of this Agreement, or any Order, shall not affect any accrued rights or liabilities which either party may have at the time of termination.
17. Intellectual Property. All Intellectual Property Rights of whatever nature in the Sunlight Application (including any improvements to or modifications), any documentation, specifications or materials supplied by us to you in relation to the Sunlight Application and the Sunlight Hardware (collectively “Material”), shall be and remain wholly, solely and exclusively our property. Other than as set out in this Agreement, you shall not acquire any right, title or interest in the Material and to the extent that such right, title or interest therein first vests in you by operation of law or otherwise you hereby irrevocably and unconditionally assign to us throughout the world without reservation or encumbrance all such right, title and interest, including in any Intellectual Property Rights, in and to all such Material without the requirement of further payment. You shall not remove or modify any of our trade marks, logos or any other marking or notice of our, or our licensor’s, proprietary rights from any Material.
18. Confidential Information. During and after the Agreement you shall keep in strictest confidence the Sunlight Solution and any information about the Sunlight Application (including its interaction or configuration with the Sunlight Hardware), including any materials or proprietary information provided to you by us in connection with this Agreement or our business, excluding information that: (i) is or becomes part of the public domain through no act or omission of yours; (ii) comes into your lawful possession without restriction on disclosure; or (iii) is independently created by you (“Confidential Information”) and shall not disclose or make use of any such Confidential Information save for the Authorised Purposes or as expressly set out in the relevant Order. You may disclose Confidential Information to the extent that it is required to be disclosed pursuant to law or the order of a court or governmental authority. You agree to treat our Confidential Information with the same degree of care as you employ with your own, and in any event in accordance with best current commercial security practices.
19. Data Protection. In relation to the processing of personal data pursuant to the Agreement, the parties agree that the DPA is expressly incorporated into this Agreement by reference and forms part of this Agreement. The parties acknowledge that, in respect of any personal data that you provide or that is provided to us on your behalf in the course of providing the Sunlight Solution to you, you are: (i) the data controller or (ii) a data processor, and that in the case of (i), we are a data processor of such personal data; and in the case of (ii), we are a sub-processor of such personal data. We each agree to comply, at all times, with applicable Data Protection Legislation (as defined in the DPA) and the terms set out in the DPA.
20. General. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement. The rights granted under this Agreement are granted only to you and not to any other person or entity. Except in the case of assignment to an acquiring, acquired or merging entity, or an entity that acquires all or substantially all of a party’s assets, neither party shall assign, novate or otherwise transfer its rights or obligations under this Agreement without the other’s prior written consent (not to be unreasonably withheld or delayed). The parties intend that no term of this Agreement may be enforced by any person who is not a party to it. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall be and hereby are excluded. All notices that are required to be given under this Agreement must be in writing (email is sufficient) using the address or email address for either party set out in Order and, provided notice of non-delivery is not received, shall be effective on the date sent, if by email. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. You and Sunlight.io shall each comply with all applicable laws and regulations applicable to our respective performance of this Agreement, including without limitation the Data Protection Legislation, the UK Bribery Act 2015, and all anti-corruption and anti-money laundering laws and regulations. You acknowledge that the Sunlight Solution may be subject to national and international controls including laws and regulations on its export to, import from and use in certain territories and you agree to abide by all such controls, laws and regulations. You shall implement and maintain at all times a suitable policy for prevention of the criminal facilitation of tax evasion containing reasonable “prevention procedures” as required for the purposes of the defence set out in s.45(2) and s.46(3) of the Criminal Finances Act 2017 (a “Prevention of Tax Evasion Policy“) which covers all aspects of the performance of this Agreement and shall procure that all of your relevant officers, employees or agents and any other persons who are engaged to perform any part of this Agreement and who are “associated” with it for the purposes of section 44 of the Criminal Finances Act 2017 (“Associates“) shall at all times in the performance of this Agreement, comply with its Prevention of Tax Evasion Policy. This Agreement shall be governed by and construed in accordance with the laws of England and Wales whose courts shall have exclusive jurisdiction over any and all disputes arising out of or in connection with it (including but not limited to any non-contractual disputes and claims).