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1.
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Definitions and Interpretation
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1.1
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In this Agreement and for future correspondence between the Parties to this Agreement the following terms shall have the following meanings:
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"Additional Fees"
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means the further fees payable by You for the Additional Services which You have elected or may elect from time to time to obtain from or via PayVector (as offered by PayVector from time to time) pursuant to clause 4.2 such further fees being agreed in writing by PayVector;
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"Additional Services"
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means services as may be introduced and made available by PayVector from time to time;
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"Additional Services Start Date"
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as more particularly defined in clause 4.2;
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"Agreement"
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means these terms and conditions and/or any terms agreed by PayVector in writing;
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"Annual Subscription"
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means the amount payable by You yearly in advance for the Service;
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"Authentication Method"
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means any unique username and/or password combination allocated by PayVector from time to time or any alternative or supplemental authentication method that PayVector may from time to time use or arrange in advance with You;
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"Business Days"
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means a day (other than a Saturday or Sunday) when banks are open for the transaction of normal banking business in London, United Kingdom;
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"Commencement Date"
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means the date PayVector accepts Your first request for the Services;
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" PayVector Reporting"
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means a set of online pages accessible by You on (https://mms.payvector.net/) using the Authentication Method. The Authentication Method may be changed from time to time for Your security, and PayVector will notify You of any such changes in writing;
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"Fees"
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means the charges payable by You for the Services as agreed by PayVector, including without limitation the Monthly Fees, Additional Fees (if any), Monthly Subscription and the Annual Subscription. These fees may be amended from time to time by PayVector with 20 Business Days prior written notice;
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"Intellectual Property Rights"
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means all or any copyright design right, trade mark and patents;
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"Merchant Environment"
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means that environment in which You interface with the Cardholder to both physical and virtual solutions.
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"Monthly Fees"
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means the monthly fee payable by You for the Service, in addition to the Annual Subscription or Monthly Subscription, as agreed with PayVector;
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"Monthly Subscription"
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means the amount payable by You monthly in arrears for the Service, as agreed with PayVector;
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"Network Attack"
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means any attempt (whether successful or otherwise) to try and breach the security of or access to PayVector's network, systems, software or any computing facilities owned by or within PayVector's control where such attempt is not for bona fide purposes or any denial of service attack which is designed or intended to reduce the efficiency of the PayVector network, systems, software or any of its computing facilities;
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"RPI"
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means the figure given in the General Index of Retail Prices for All Items (the "Index") contained in the Monthly Digest for statistics as published by the Central Statistics Office from time to time or an index expressly published to replace the Index from time to time;
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"Service"
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means the standard service provided by PayVector;
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"Services"
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means the Service and Additional Services You have elected to take or which You subsequently elect to take from time to time pursuant to clause 4.2 which are accepted by PayVector;
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"Software"
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the Application Programming Interface, which provides the means of integrating/linking Your Merchant Environment to the PayVector payment server. The full documentation for the Application Programming Interface is downloadable from the PayVector Merchant Management System (https://mms.payvector.net) and which provides details of the required format for required data and which is owned or licensed to PayVector including without limitation cryptographic software written by Eric Young and software written by Tim Hudson; The Application Programming Interface may be altered from time to time by and at the discretion of PayVector who will endeavour to notify You in advance but otherwise within 20 Business Days of such changes being made;
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"You", "Your", "the Client"
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means the company, partnership or other entity or individual (as relevant) whose name and address are provided during the registration process on (https://mms.payvector.net);
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1.2
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Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted, with or without amendment.
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1.3
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Unless there is something inconsistent in the subject or context, words denoting the singular number only include the plural and vice versa; words denoting one gender only include the other genders. Reference to a person or third party shall include a reference to any person, body, firm, association or other entity whether incorporated or otherwise.
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1.4
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Unless the context otherwise requires, a reference to a clause is to a clause of this Agreement detailing any Service and containing the terms in relation to such Service.
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1.5
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The headings in this Agreement are inserted for convenience only and do not affect its interpretation.
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1.6
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Unless the context otherwise requires or it is otherwise stated reference to a Party or Parties shall be a reference to PayVector and the Client.
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1.7
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A reference in this Agreement to "include" or "including" shall be construed as an exhaustive list and a reference to "including without limitation" shall be an illustrative and non-exhaustive list.
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2.
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Duration and Notice
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2.1
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The minimum duration of the contract is 12 months from the Commencement Date (unless terminated in accordance with clause 2.2, 10 or 13 or as otherwise stated in this Agreement) and shall continue thereafter for so long as any Service is being provided by PayVector on a rolling monthly basis.
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2.2
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Unless this Agreement is terminated sooner in accordance with clause 10 or 13 (or as otherwise stated in this Agreement) either Party shall be entitled to give notice to terminate this Agreement in relation to a particular Service only by giving to the other no less than 90 days prior written notice PROVIDED THAT such notice expires no earlier than twelve months from the Commencement Date or Additional Services Start Date (if later) relevant for such particular Service. For the avoidance of doubt if either Party gives notice to the other to terminate a particular Service pursuant to this clause 2.2 any other Services will continue in accordance with the terms of this Agreement.
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3.
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Refund Policy
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3.1
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In the event that You want to cancel the Service, You shall notify PayVector in writing, up to 30 days after the Commencement Date. Subject to the cancellation, PayVector will refund You for the Monthly Subscription or the Annual subscription within 7 Business Days of receiving Your notice in writing.
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3.2
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Your notice shall be send to PayVector in accordance to clause 15.7
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4.
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The PayVector Services
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4.1
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In consideration for the Fees, PayVector agrees to provide to You:
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4.1.1
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the Services;
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4.1.2
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a standard level of support; and
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4.1.3
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access to operating manuals or instructions supplied or made available by PayVector from time to time relating to the Services and the Software.
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4.2
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If at any time after the Commencement Date You wish PayVector to provide You with any one or more of the Additional Services which on the Commencement Date You did not elect to take You shall notify PayVector in writing, specifying which Additional Services you require ("Order"). You acknowledge and agree that PayVector shall not be required to accept Your Order. In the event that PayVector does elect to accept Your Order then it will notify You in writing ("Additional Services Start Date").
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4.3
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You agree and accept that any Order will be subject to and provided in accordance with the terms and conditions set out in this Agreement (as applicable).
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5.
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Use of Software
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5.1
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You acknowledge and accept that PayVector will only be able to provide You the Services and that the Software will only provide the functionality relevant to the Services if You:
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5.1.1
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properly use the Software to integrate Your Merchant Environment into the PayVector payment server; and
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5.1.2
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do not alter, modify, translate, adapt, decompile, disassemble or reverse engineer the Software so as to effect or in any way prejudice the functionality of the Software.
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6.
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Software
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6.1
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Licence
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6.1.1
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PayVector hereby grants You permission to use the Software.
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6.1.2
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The Software is provided "as is", without warranty of any kind, express or implied
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6.2
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Proprietary Rights
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6.2.1
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Such of the Intellectual Property Rights and/or any goodwill, know-how or any other proprietary rights relevant to the Software which are owned by PayVector are and shall remain the absolute exclusive property of PayVector and PayVector reserves the right to grant licences to use the Software to third parties.
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6.2.2
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You shall not acquire any Intellectual Property Rights and/or any goodwill, know-how or any other proprietary rights in any form whatsoever or howsoever in the Software.
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6.3
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Warranties
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6.3.1
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PayVector warrants that:
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(a)
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it has full power of authority to grant the licence set out in clause 6.1;
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(b)
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it has the full right and interest in such of the Software as it owns and the right to grant sub licenses in relation to such parts of the Software it does not own; and
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(c)
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the Software will provide in all material respects the functionality relevant to the Services subject to You complying with clause 5.1
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(d)
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all of the relevant Services and underlying infrastructure shall be maintained to comply with the standards outlined in the Payment Card Industry Data Security Standard ("PCI DSS") published on the website www.pcisecuritystandards.org, including but not limited to, access to, storage of, processing or transmission of cardholder data; and
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(e)
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it holds PCI DSS Certification in relation to the Services. Upon demand, PayVector will present a copy of the PCI DSS Certification to You.
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6.3.2
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In the event that the Software does not provide the relevant functionality You agree that PayVector shall have the right to use its reasonable endeavours to either correct any bugs in the Software or to otherwise replace or repair the Software which may be identified as causing the breach of clause 6.3.1(c) before You may take any further action against PayVector whether under this Agreement or as otherwise permitted by law.
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6.3.3
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You acknowledge and accept that no software including without limitation the Software is bug, interruption or error free and in the event of any such errors, interruption or bugs the terms of clause 6.3.2 shall apply.
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6.4
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Other than as expressly set out in this Agreement including without limitation clause 6.3.1 all representations, warranties, conditions and terms express or implied and whether statutory or otherwise are expressly excluded by PayVector to the fullest extent permitted by law.
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7.
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Your Payment to us - Fees
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7.1
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You shall pay to PayVector the Fees for the Services as follows:
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7.1.1
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the Annual Subscription which shall be payable on the Commencement Date and yearly after each such date; or
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7.1.2
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the Monthly Subscription which shall be payable by You monthly in arrears; and
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7.1.3
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the Monthly Fees which shall be payable by You monthly in arrears.
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7.2
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If at any time You notify PayVector in writing that You wish to receive any Additional Services then You shall pay to PayVector on the Additional Services Start Date such Additional Fees as are applicable.
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7.3
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You agree that following submission of PayVector invoice pursuant to either clause 7.1 or 7.2 (if relevant) from time to time PayVector shall be entitled to deduct the full amount of such invoice from the registered billing card as provided by You to PayVector on the Commencement Date and Order Date (if relevant).
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7.4
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In the event of PayVector not receiving settlement of its invoices for any reason You shall pay PayVector's invoices in accordance with clause 7.1 and (if relevant) clause 7.2 within 28 days of invoice date either via the registered billing card, BACs or cheque payment.
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7.5
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Where You have any query on PayVector invoice, You shall make any such query known to PayVector within 5 Business Days of receipt of the relevant invoice.
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7.6
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If You default in the payment of any of the Fees as and when they fall due in accordance with this clause 7 the amount unpaid shall bear interest from the due date until payment is made in full (irrespective of whether the date of payment is before or after any judgment or award in respect of the same) at 3 percent per annum over Barclays Bank plc base rate from time to time.
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7.7
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PayVector has the right to suspend its Services without notice and/or terminate this Agreement with immediate effect by giving You notice in writing if You do not pay any of the amounts due to PayVector from time to time within the period specified in clause 7.3, 7.4 and 7.5unless they are the subject of a bona fide dispute.
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8.
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Limitation of Liability
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8.1
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Without prejudice to the provisions of clauses 5, 6.3.2 and 6.4 or any other specific limitation or exclusion of liability set out in this Agreement, the following provisions set out PayVector's entire liability (including any liability for the acts and omissions of its officers, employees, agents or sub-contractors) to You in respect of:
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8.1.1
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any breach of its contractual obligations arising under this Agreement; and
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8.1.2
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any breach of any of the warranties expressly given by PayVector in this Agreement; and
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8.1.3
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any representation statement or tortious act or omission including negligence arising under or in connection with this Agreement; and
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8.1.4
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any claim by You under any indemnity in this Agreement
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AND YOUR ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 8.
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8.2
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Any act or omission on the part of PayVector or their officers, employees agents or subcontractors falling within clause 8.1 or any breach by PayVector of any of the warranties it expressly gives in this Agreement shall for the purposes of this clause 8 be known as an "Event of Default".
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8.3
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PayVector's liability to You for:
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8.3.1
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death or injury resulting from their own or that of their officers', employees', agents' or sub-contractors' negligence; or
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8.3.2
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fraudulent misrepresentation
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shall not be limited.
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8.4
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Subject to clause 8.3 PayVector shall not be liable to You in respect of any Event of Default for:
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(a)
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loss of profits; or
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(b)
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loss of goodwill; or
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(c)
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loss of data; or
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(d)
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any type of special, indirect or consequential loss
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even if such loss was reasonably forseeable or PayVector had been advised of the possibility of You incurring the same.
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8.5
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If a number of Events of Default give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
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8.6
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Except in the case of an Event of Default arising under clause 8.3, PayVector shall have no liability to You in respect of any Event of Default.
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8.7
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PayVector shall not be responsible for complying with statutory regulations, or local bylaws, or the fulfilment of any special regulations affecting You save that both Parties shall comply with the provisions of the Data Protection Act 1998 relating to the processing of personal data.
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8.8
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The obligations set out in this clause 8 as to limitations of liability shall remain in full force and effect notwithstanding the expiration or any termination of this Agreement for any reason whatsoever and each of the provisions of this clause 8 shall operate separately in itself and survive independently of the others.
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8.9
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Without prejudice to the generality of clause 8.7 in the event that PayVector processes personal data (as defined in the Data Protection Act 1998) on behalf of the Client, PayVector shall:
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8.9.1
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process and use the personal data provided to it by the Client only to perform its obligations and only to the extent permitted under the terms of this Agreement;
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8.9.2
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only act on the Client's reasonable and lawful instructions in relation to the processing of the personal data provided to it PROVIDED THAT such instructions shall not prevent or hinder PayVector from performing its express obligations under this Agreement;
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8.9.3
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operate appropriate technical and organisational measures to protect against unauthorised or unlawful processing of such personal data and accidental loss or destruction of, or damage to such personal data;
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8.9.4
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comply with obligations equivalent to those imposed on data controllers by the seventh data protection principle as defined by the Data Protection Act 1998; and
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8.9.5
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provide evidence to the Client on written request (which shall not be made more than 4 times a year) of the technical and organisational measures PayVector has taken to comply with its obligations under this clause.
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9.
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Indemnities
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9.1
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PayVector shall indemnify and hold You harmless against all costs claims, demands, expenses and liabilities of whatsoever nature arising out of or in connection with any claim by any third party that the normal use or possession of the Software infringes the Intellectual Property Rights of any third party, subject to the following conditions:
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9.1.1
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You shall notify PayVector in writing within five Business Days of becoming aware of any allegations of infringement; and
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9.1.2
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You will not make any admissions without PayVector's prior written consent; and
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9.1.3
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PayVector shall have control over the defence of any such suit or claim in relation to the Software and over all negotiations in relation thereto and, in particular, You shall not make or attempt to make any settlement or admit any liability in relation to such suit or claim without the prior written consent of PayVector which may be withheld in PayVector's sole and absolute discretion; and
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9.1.4
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You shall provide all such documents, information and assistance and do all such acts and things as PayVector may reasonably require to assist it in relation to any such suit or claim subject to PayVector paying Your reasonable and actual expenses in relation to providing any such documents, information and/or assistance as aforesaid.
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9.2
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The indemnity set out in clause 9.1 shall not extend to any infringements resulting from:
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9.2.1
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use of the Software with other items where, but for such combination, infringement would not have occurred; or
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9.2.2
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use of the Software in a manner, or for a purpose, not disclosed to PayVector before the date of this Agreement.
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9.3
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The provision of this clause 9 states the entire liability of PayVector to You in respect of the infringement of the Intellectual Property Rights of any third party.
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9.4
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You shall indemnify PayVector and keep it fully and effectively indemnified from and against all actions, suits, proceedings, claims, demands, damages, losses, expenses and costs (including legal costs) and any liability suffered or incurred by PayVector:
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9.4.1
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in connection with any third party Intellectual Property Rights claim based on the combination of the Software by You with any unauthorised product; or
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9.4.2
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arising out of PayVector correctly processing the Card Scheme Transaction on Your behalf; or
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9.4.3
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in connection with any Network Attack which is traced to You or any of Your employees, officers, agents or sub-contractors.
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10.
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Our Right to Make Changes
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10.1
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PayVector has the right to make changes to the Fees at any time provided PayVector gives You at least 20 Business Days prior notice in writing.
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10.2
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In the event that the Fees are to be increased by an amount in excess of the then relevant RPI then You have the right to give 20 Business Days notice to terminate this Agreement provided such notice is received no later than the end of 20 Business Days from the date of PayVector's relevant notification to You.
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10.3
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In the event of termination the relevant Fees payable by You during the 20 Business Days notice period shall be the Fees being charged to You by PayVector prior to the said notice of increase and the provisions of clauses 13.4 and 13.5 shall apply.
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11.
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Publicity
You acknowledge that PayVector wishes You to tell Your customers that You use its Service, so You agree to the following:
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11.1
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Subject to PayVector obtaining Your prior consent to allow PayVector to mention Your name in its promotional materials and when it advertises its service in the newspapers, on television, radio or through any other media it may choose from time to time.
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12.
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Force Majeure
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PayVector will not be responsible if the Services are delayed or suspended or if it cannot provide support or maintenance because of any cause at all beyond PayVector 's reasonable control including without limitation:
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a third party mechanical or power failure; or
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a strike or labour dispute; or
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fire, act of God, flood, act of terrorism; or
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a breakdown in any third party equipment, including third party computer hardware or third party software (this includes cases where the service engineer cannot be called out); or
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any Network Attack.
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13.
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Termination
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13.1
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Either Party shall be entitled to terminate this Agreement in relation to any of the Services ("Relevant Service"):
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13.1.1
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by notice to the other if the other Party commits any material or persistent breach of any of the provisions of this Agreement in relation to the Relevant Service and, in the case of a breach capable of remedy, fails to remedy the same within thirty (30) days after receipt of a written notice giving full particulars of the breach and requiring the same to be remedied; or
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13.1.2
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by notice to the other if the other Party commits a non-remediable breach of this Agreement in relation to the Relevant Service.
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13.2
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Either Party shall be entitled to terminate this Agreement (which for the avoidance of doubt shall mean the termination of the Services) by notice to the other if:
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13.2.1
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any Network Attack is traced to You or Your officers, employees, agents or subcontractors; or
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13.2.2
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an encumbrancer takes possession or a receiver, administrative receiver or manager or trustee in bankruptcy is appointed over any of the property or assets of that other Party or the other Party makes a voluntary petition of bankruptcy; or
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13.2.3
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the other Party makes a voluntary arrangement with its creditors or becomes subject to an administration order; or
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13.2.4
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the other Party goes into liquidation (except for the purposes of solvent amalgamation or a solvent reconstruction and in such manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under this Agreement); or
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13.2.5
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anything analogous to any of the foregoing under the law of any jurisdiction, occurs in relation to the other Party; or
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13.2.6
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the other Party ceases or threatens to cease to carry on its business.
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13.3
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For the purposes of clause 13.1.1 a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects other than as to a reasonable period for performance.
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13.4
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Upon the termination or expiration:
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13.4.1
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of a Relevant Service pursuant to clause 13.1 You shall cease being provided the Relevant Service and have no right to use the same. For the avoidance of doubt the Agreement shall continue in full force and effect in respect of any and all the other Services (other than the Relevant Service); or
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13.4.2
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of this Agreement pursuant to clause 13.2 You shall cease being provided the Services and have no right to use the same.
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13.5
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The terms of this Agreement shall continue to bind the Parties after the expiration or termination to such extent and for so long as may be necessary to give effect to the rights and obligations embodied in it including without limitation clauses 7, 8, 9, 13 and 14.
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14.
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Confidentiality
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14.1
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Each Party undertakes to the other Party to treat as confidential and not to use or exploit any information supplied or made available by the other Party under this Agreement which is designated as confidential by it or which is by its nature clearly confidential provided that this clause shall not extend to any information which was rightfully in the possession of the other Party prior to the commencement of the Services or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause). Neither Party shall divulge any confidential information to any person except to their own employees, sub-contractors or agents and then only to those employees, sub-contractors or agents who need to know the same.
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14.2
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PayVector and You both agree not to disclose any Authentication Method relevant from time to time to any third party except on a need-to-know basis pursuant to an obligation under this Agreement.
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14.3
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The obligations in this clause 14 shall survive any termination or expiration of this Agreement.
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15.
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General
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15.1
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You shall not assign, transfer, sub-license, sub-contract, delegate or in any other manner make over to any third party any of Your rights or entitlements hereunder without PayVector's prior consent in writing, such consent not to be unreasonably withheld or delayed.
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15.2
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This Agreement represents the entire Agreement between the Parties in relation to the subject matters hereof and shall supersede any previous agreement or understanding between all or any of the Parties in relation to all or any such matters. No amendment or change to the terms of this Agreement will be effective unless it is in writing and signed by persons authorised on behalf of both Parties.
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15.3
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You acknowledge that in entering into this Agreement on the terms set out herein You are not relying upon any representation, warranty, promise or assurance made or given by or on behalf of PayVector or any other person, whether or not in writing, at any time prior to the signature of this Agreement or subsequently prior to any Order which is not expressly set out herein.
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15.4
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This Agreement shall operate for the benefit of and be binding on the respective successors in title and permitted assignees or transferees of each Party.
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15.5
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None of the rights of either Party shall be prejudiced or restricted by any indulgence or forbearance extended to the other Party and no waiver by either Party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
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15.6
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If any of the provisions of this Agreement is found by any court, arbitrator or other competent authority to be void or unenforceable, the provision shall be deemed to be deleted from this Agreement and the remaining provisions shall continue in full force and effect. The Parties shall nevertheless negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision which is void or unenforceable.
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15.7
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Any notice which has to be given under this Agreement, must be sent by email to the address of the other Party. Any notice shall be deemed received on the same day if sent within normal business hours (9am to 6pm, Monday to Friday) on a Business Day. Otherwise, it will be deemed received on the next Business Day.
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15.8
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Both Parties will do whatever is necessary and within their power to comply with this Agreement.
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15.9
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A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of this Agreement.
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The construction, validity and performance of this Agreement shall be governed in all respect by the Law of England and Wales and the Parties hereby submit to the exclusive jurisdiction of the English courts.
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