DXRE - SOFTWARE LICENCE AGREEMENT

BACKGROUND

The Supplier is the entire legal and beneficial owner and licensor of certain software products listed in Schedule 1 and is willing to license the Customer to use these products.

Agreed terms

1.             Interpretation
1.1          The definitions and rules of interpretation in this clause apply in this licence.
Acceptance Date: the date on which the Customer is deemed to have accepted the Software under clause 2.7;

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party;

Control: a business entity shall be deemed to "control" another business entity if it owns, directly or indirectly, in excess of 50% of the outstanding voting securities or capital stock of such business entity, or any other comparable equity or ownership interest with respect to a business entity other than a corporation;

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;

Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version;

New Version: any new version of the Software which from time to time is publicly marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;

Open-Source Software: open-source software as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org);

Software: the computer programs listed in Schedule 1 and any Maintenance Release which is acquired by the Customer during the subsistence of this licence;

Source Code Materials: the source code of the Software, and all technical information and documentation required to enable the Customer to modify and operate it;

Specification: the document detailing the specification of the Software which forms the Appendix hereto;

[Third-Party Additional Terms: the additional terms and conditions set out in the Appendix relating to Third-Party Software];]

[Third-Party Software: the third-party software identified in the Appendix.]

1.2          Clause, Schedule and paragraph headings shall not affect the interpretation of this licence.
1.3          Unless the context otherwise requires:
1.3.1         words in the singular shall include the plural and in the plural shall include the singular;
1.3.2         A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this licence;
1.3.3         a reference to one gender shall include a reference to the other genders; and
1.3.4         any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4          In the case of conflict or ambiguity between any provision contained in the body of this licence and any provision contained in the schedules or appendices, the provision in the body of this licence shall take precedence.
1.5          A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors and permitted assigns.
1.6          References to clauses and Schedules are to the clauses and Schedules of this licence and references to paragraphs are to paragraphs of the relevant Schedule.
1.7          The Schedules and Annexes form part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedules and Annexes.
2.             Delivery, Acceptance and Installation
2.1          The Supplier shall deliver and install on the Customer's equipment one copy of the Software electronically to the Customer at the address for the Customer within [NUMBER] days of signature of this licence, and shall provide a copy of the Software on tangible media. Risk in any tangible media on which the Software is delivered shall pass on delivery.
2.2          Within 24 hours of installation, the Customer shall supply data (Test Data) to the Supplier suitable to test whether the Software operates in accordance with the Specification (Acceptance Testing) together with the results (Test Results) it reasonably expects to be achieved by processing the Test Data using the Software.
2.3          If the Supplier can show the Customer that the Test Data or Test Results are not suitable for Acceptance Testing, the Customer shall make such amendments to the Test Data and Test Results as the Supplier may reasonably request and provide the amended versions to the Supplier within seven days of the request.
2.4          Within seven days of receipt of suitable Test Data and Test Results, the Supplier shall carry out Acceptance Testing in the presence of the Customer or its Authorised Agent.
2.5          If the initial Acceptance Testing fails, the Supplier shall, within seven days of the Acceptance Testing and at its cost, correct the errors so disclosed and repeat the Acceptance Testing in the presence of the Customer or its Authorised Agent.
2.6          If the subsequent Acceptance Testing fails, the Customer may discontinue this licence by written notice, or require the Supplier to repeat the actions described in clause 2.4 and clause 2.5 as often as the Customer wishes (subject to the limitation specified below). If the licence is so discontinued, the Supplier shall, within seven days of receipt of that notice, refund all monies paid by the Customer under this licence, and on receipt of that refund this licence shall terminate. If subsequent Acceptance Testing continues to fail, the Customer shall continue to have the same rights as described above until failure of the [fourth] Acceptance Testing, or (if earlier) the date on which the Supplier reasonably determines that further Acceptance Testing will not be successful within a reasonable period, whereupon the Customer shall discontinue this licence.
2.7          The Customer shall be deemed to have accepted the Software if:
2.7.1         the Acceptance Testing is certified by the Supplier to be successful;
2.7.2         the Customer fails to provide the Test Data and Test Results within either of the time limits set out in clause 2.3 and clause 2.4 (as to which time shall be of the essence); or
2.7.3         the Customer commences operational use of the Software.
3.             Licence
3.1          In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive licence for [a term of [NUMBER] years] commencing on and including the date of this licence to use the Software]
3.2          In relation to scope of use:
3.2.1         for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of processing the Customer's data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer).
3.2.2         [For the purposes of clause 3.1, "use of the Software" means loading the Software into temporary memory or permanent storage on the relevant computer, provided that installation on a network server for distribution to other computers is not "use" if the Software is licensed under this licence for use on each computer to which the Software is distributed.]
3.2.3         the Customer may not use the Software other than as specified in clause 3.1 and clause 3.2.1 without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier.
3.2.4         the Customer may make [one] backup copy of the Software for its lawful use. The Customer shall record the location of such copy of the Software and take steps to prevent unauthorised copying.
3.2.5         except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
3.2.6         [the Third-Party Software shall be deemed to be incorporated within the Software for the purposes of this licence (except where expressly provided to the contrary) and use of the Third-Party Software shall be subject to the Third-Party Additional Terms.]
3.2.7         [the Customer shall indemnify and hold the Supplier harmless against any loss or damage which it may suffer or incur as a result of the Customer's breach of any Third-Party Additional Terms howsoever arising.]
3.2.8         [the Supplier may treat the Customer's breach of any Third-Party Additional Terms as a breach of this licence.]
3.3          The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 3.2.5 to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.
3.4          The Customer shall not:
3.4.1         sub-license, assign or novate the benefit or burden of this licence in whole or in part;
3.4.2         allow the Software to become the subject of any charge, lien or encumbrance; and
3.4.3         deal in any other manner with any or all of its rights and obligations under this licence,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.

3.5          The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.
3.6          Each party confirms it is acting on its own behalf and not for the benefit of any other person.
3.7          Notwithstanding clause 6, a party assigning any or all of its rights under this licence may disclose to a proposed assignee any information in its possession that relates to this licence or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 3.7 shall be made until notice of the identity of the proposed assignee has been given to the other party.
3.8          The Customer shall:
3.8.1         [ensure that the number of persons using the Software does not exceed [NUMBER];]
3.8.2         ensure that the Software is installed on designated equipment only;
3.8.3         keep a complete and accurate record of the Customer's copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;
3.8.4         notify the Supplier as soon as it becomes aware of any unauthorized use of the Software by any person;
3.8.5         pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.
3.9          The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.
4.             Maintenance Releases
The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software. The Customer shall install all Maintenance Releases as soon as reasonably practicable after receipt.

5.             Fees
5.1          The Customer shall pay to the Supplier licence fees of £[AMOUNT] [on signature of this licence OR monthly, in advance on or before the first day of the month in question after the Acceptance Date OR payable in instalments, as follows:
5.2          All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
5.3          If the Customer fails to make any payment due to the Supplier under this licence by the due date for payment, then, without limiting the Supplier's remedies under clause 11, the Customer shall pay interest on the overdue amount at the rate of [4]% per annum above [FULL NAME OF BANK]'s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.             Confidentiality and Publicity
6.1          Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any, information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
6.2          No party shall make, or permit any person to make, any public announcement concerning this licence without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
7.             Export
7.1          Neither party shall export, directly or indirectly, any technical data acquired from the other party under this licence (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.
7.2          Each party undertakes:
7.2.1         contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and
7.2.2         if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.
8.             Supplier's Warranties
8.1          The Supplier warrants that the Software will conform in all material respects to the Specification for a period of [90 days] from the date of this licence (Warranty Period). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to conform in all material respects to the Specification, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier's option, do one of the following:
8.1.1         repair the Software;
8.1.2         replace the Software; or
8.1.3         terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

8.2          The Supplier does not warrant that the use of the Software will be uninterrupted or error-free.
8.3          The Customer accepts responsibility for the selection of the Software to achieve its intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.
8.4          [The Customer acknowledges that any Open-Source Software provided by the Supplier is provided "as is" and expressly subject to the disclaimer in clause 8.5.]
8.5          All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
9.             Limits of Liability
9.1          Except as expressly stated in clause 9.2:
9.1.1         the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
9.1.1.1            special damage even if the Supplier was aware of the circumstances in which such special damage could arise;
9.1.1.2            loss of profits;
9.1.1.3            loss of anticipated savings;
9.1.1.4            loss of business opportunity;
9.1.1.5            loss of goodwill;
9.1.1.6            loss or corruption of data,
provided that this clause 9.1.1 shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the terms of clause 9.1.2 or any other claims for direct financial loss that are not excluded by any of categories 9.1.1.1 to 9.1.1.6 inclusive of this clause 9.1.1;

9.1.2         the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and
9.1.3         the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.
9.2          The exclusions in clause 8.5 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
9.2.1         death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
9.2.2         fraud or fraudulent misrepresentation;
9.2.3         breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
9.2.4         any other liability which may not be excluded by law.
9.3          All dates supplied by the Supplier for the delivery of the Software shall be treated as approximate only. The Supplier shall not in any circumstances be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4          All references to "the Supplier" in this clause 9 shall, for the purposes of this clause and clause 18 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 18.
10.          Intellectual Property Rights
10.1        The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier [or the relevant third-party owners (as the case may be)], and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
10.2        The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 10.2 shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3        If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 10.2 are conditional on the Customer:
10.3.1       as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
10.3.2       not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
10.3.3       giving the Supplier and its 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 the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
10.3.4       subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
10.4        If any Claim is made, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
10.4.1       procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;
10.4.2       modify the Software so that it ceases to be infringing;
10.4.3       replace the Software with non-infringing software; or
10.4.4       terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof,
provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranties contained in clause 8.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.

10.5        [Notwithstanding any other provision in this licence, clause 10.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any Third-Party Software or through the breach of any Third-Party Additional Terms by the Customer.]
10.6        This clause 10 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.1.
11.          Duration and Termination
11.1        Without affecting any other right or remedy available to it, either party may terminate this licence with immediate effect by giving written notice to the other party if:
11.1.1       [the other party fails to pay any amount due under this licence on the due date for payment and remains in default not less than 21 days after being notified in writing to make such payment;]
11.1.2       the other party commits a material breach of any other term of this licence which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
11.1.3       the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
11.1.4       the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.5       a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
11.1.6       an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
11.1.7       the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
11.1.8       a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
11.1.9       a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
11.1.10    any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.3 to clause 11.1.9 (inclusive); or
11.1.11    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.2        Any provision of this licence that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this licence shall remain in full force and effect.
11.3        Termination or expiry of this licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
11.4        On termination for any reason:
11.4.1       all rights granted to the Customer under this licence shall cease;
11.4.2       the Customer shall cease all activities authorised by this licence;
11.4.3       the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
11.4.4       the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
11.5        Any provision of this licence which expressly or by implication is intended to come into or continue in force on or after termination of this licence including clause 1, clause 6, clause 7, clause 8 (except clause 8.1), clause 9 and clause 11 shall remain in full force and effect.
12.          Waiver
No failure or delay by a party to exercise any right or remedy provided under this licence or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

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

14.          Entire Agreement
14.1        This licence[, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein] contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2        Each party acknowledges that, in entering into this licence [and the documents [referred to in it OR annexed to it]], it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (Representation) other than as expressly set out in this licence [or those documents].
14.3        Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
14.4        Nothing in this clause shall limit or exclude any liability for fraud.
15.          Variation
No variation of this licence shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.          Severance
16.1        If any provision or part-provision of this licence is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this licence.
16.2        If any provision or part-provision of this licence is deemed deleted under clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.          Counterparts
This licence may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

18.          Third-party Rights
18.1        The Supplier and the entities referred to in clause 9.4 may enforce the terms of this licence subject to and in accordance with this clause 18, this licence and the Contracts (Rights of Third Parties) Act 1999.
18.2        It is agreed that it is intended to confer a benefit on the Supplier and its Affiliates by making the exclusions and limitations of liability available to them in accordance with this licence, provided that the rights of such Affiliates under this licence shall only be enforceable by the Customer on their behalf. The Supplier will owe no duty to them to enforce such rights and it may conduct or compromise any relevant proceedings as it sees fit.
18.3        Except as provided in clause 18.1 and clause 18.2, a person who is not a party to this licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this licence, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
18.4        The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this licence are not subject to the consent of any person that is not a party to this licence.
19.          No Partnership or Agency
19.1        Nothing in this licence is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
19.2        Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20.          Force Majeure
Neither party shall be in breach of this licence nor liable for delay in performing, or failure to perform, any of its obligations under this licence if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this licence by giving 21 days' written notice to the affected party.

21.          Notices
21.1        Any notice given to a party under or in connection with this licence shall be in writing and shall be:
21.1.1       delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
21.1.2       sent by email to the email address designated by the parties for the service of notices.
21.2        Any notice shall be deemed to have been received:
21.2.1       if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
21.2.2       if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
21.2.3       if sent by email, at [9.00 am] on the next Business Day after secnding.
21.3        This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
22.          Governing Law and Jurisdiction
22.1        This licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
22.2        The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this licence or its subject matter or formation (including non-contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.