Part A - General Terms
Table of Contents
Effective as of 31 January 2022
The Member wishes to use the Contour Application in accordance with the terms and conditions of this Agreement and the Rulebook. The Member requires the use of the Contour Application as well as software and products offered by certain third parties.
This Agreement consists of several Parts which will apply to the Member depending on the choices made by the Member in the Order Form. The Member has indicated in the Order Form which products and services it wishes to purchase from Contour.
1.1 Structure of Agreement. This Agreement establishes a contractual framework for the purchase of Contour Identities and supply of the Licensed Software and Services pursuant to the terms of this Agreement and the individual Order Forms entered into from time to time between the Parties.
1.2 Order of Precedence.
1.2.1 If there is a conflict between the terms and conditions of this Agreement, the Parts, Schedules and any other document incorporated by reference into this Agreement, then such conflict shall be resolved by giving precedence to such different parts of this Agreement in the following order of precedence (unless expressly agreed otherwise by the Parties in any document incorporated by reference):
(a) first, Clauses 1 to 26 of Part A of this Agreement;
(b) second, Part B through Part H of this Agreement (excluding the Product Schedules in Part F);
(c) third, the Product Schedules in Part F; and
(d) fourth, any documents incorporated by reference.
1.2.2 If there is a conflict between this Agreement and any Order Form, then, except to the extent expressly stated to the contrary, such conflict will be resolved by giving precedence to the documents in the following order of precedence:
(a) first, this Agreement; and
(b) second, the Order Form.
1.3 Updates. Without prejudice to any other obligations under this Agreement, Contour may, at its sole discretion, update and amend any term of this Agreement, from time to time. Such changes shall be published on Contour’s website and become effective and binding on the date specified.
2. Contour Identities
2.1 Purchase of Contour Identities and Licensed Software using Order Forms.
2.1.1 The Member shall be represented by a separate and unique Contour Identity(ies).
2.1.2 The Member may purchase any number of Contour Identities and Licensed Software as set out in an Order Form and shall be responsible for paying the applicable Fees on and from the Order Form Billing Date in respect of each Contour Identity.
2.1.3 The Member shall complete the Order Form in accordance with the template set provided by Contour. Once agreed and duly executed by the Parties, each validly executed Order Form shall form part of this Agreement.
2.1.4 The terms of this Agreement shall apply to each Party’s rights and obligations under each Order Form.
2.2 Contour Identity Applications.
2.2.1 Prior to activation of each Contour Identity, the Member shall submit a completed Contour Identity Application to Contour in respect of each Contour Identity that it wishes to activate on the Platform.
2.3 Additional Contour Identities and Licensed Software.
2.3.1 The Member may request the purchase of additional Contour Identities or Licensed Software from time to time by submitting a new completed Order Form to Contour in accordance with Clause 2.1 of this Part A.
2.4 Amendments to / disabling of a Contour Identity.
2.4.1 The Member may notify Contour in writing of any amendments it wishes to make to a Contour Identity or of the intention to disable a Contour Identity, provided that the Member shall be responsible for paying the Contour Identity Fee for that Contour Identity for the remainder of the Order Form Term.
2.4.2 Where the Member is a Cloud Member, upon the disabling of a Contour Identity, Contour shall provide the Member with a copy of the Member Data pertaining to that Contour Identity in accordance with Clause 10.2.2(f) of this Part A.
3.1 Agreement Term. This Agreement commences on the Agreement Date and shall continue until the later of:
3.1.1 termination by either Party in accordance with the terms of this Agreement; or
3.1.2 the date of expiry of the last Order Form entered into under this Agreement (provided that there are no more active Order Forms as at the date of completion),
3.2 Order Form Term.
3.2.1 Each Order Form shall come into effect on the Order Form Effective Date and shall continue for the duration specified in the Order Form (unless terminated earlier in accordance with Clause 10.1 or extended in accordance with Clause 3.2.3) (“Order Form Term”). Subject to Clause 3.1, the Agreement shall survive termination or expiry of an Order Form.
3.2.2 No later than sixty (60) days prior to the expiry of each Order Form Term, Contour shall notify the Member of any changes to the Fees payable by the Member for a further Renewal Term (if applicable) (“Updated Fees“).
3.2.3 Upon the expiry of the Order Form Term, the Order Form shall automatically renew for an additional twelve month period(s) on a continuing basis (each a “Renewal Term”) at the Updated Fees unless the Member notifies Contour in writing of its intention to terminate the Order Form no later than thirty (30) days prior to the expiry of the Order Form Term or any then-current Renewal Term (as the case may be).
4.1 In consideration of the Member paying the Fees, the Member shall be entitled to allow any of its Affiliates to Use the Licensed Materials and receive the benefit of the Services pursuant to the terms of this Agreement, provided that:
4.1.1 the Member shall procure that those Affiliates shall comply with all of the provisions of this Agreement (including all of the provisions relating to the Licences, the Licensed Materials and the Services) except for the Member Retained Obligations (the “Member Affiliate Provisions“), where “Member Retained Obligation” means any obligation described in this Agreement as a ‘Member Retained Obligation’ which will only be performed by the Member and not the Member’s Affiliates, and shall include Clause 9 and Clause 13.2 of this Part A;
4.1.2 the Affiliate has provided its contracting and billing information and completed the relevant sections of the Order Form; and
4.1.3 the Member shall at all times remain ultimately responsible and liable for the compliance by each Affiliate with all of the provisions of this Agreement. Any act or omission of any Affiliate shall be deemed to be an act or omission of the Member.
4.2 In this Agreement, unless the context requires otherwise and except in respect of the Member Retained Obligations, references to:
4.2.1 the Member shall include the Member’s Affiliates to the extent that such Affiliates are Using the Licensed Materials and receiving the benefit of the Services; and
4.2.2 Contour providing or receiving an item (including data or information) pursuant to this Agreement will include items provided by or to the Member’s Affiliates.
5. Contour Application Licence
5.1 In consideration of and subject to the terms, conditions, obligations and restrictions set forth in this Agreement, Contour hereby grants to Member, and Member hereby accepts, a worldwide, revocable (solely in accordance with the terms of this Agreement), non-exclusive, non-sublicensable and non-transferable right and licence during the Agreement Term to:
5.1.1 Use the Contour Application (in Object Code form only); and
5.1.2 use the Contour Application Documentation and the Platform Documents in connection with the Contour Application and to make a reasonable number of copies thereof,
(the “Contour Application Licence“).
5.2 The Contour Application may be Used, and the Contour Application Documentation may be used, by the Member solely for the purposes of its use of the System pursuant to the terms of this Agreement in connection with the Platform as governed by the Rulebook and for no other purposes whatsoever.
5.3 Subject to Clause 8 of Schedule 1, Part B, the Member shall not grant any further licences, sublicences or use rights in respect of the Contour Application Licence.
6. Contour Application Modifications
6.1 Contour shall provide Upgrades to the Contour Application in accordance with the ‘Upgrading Policy’ section of the Support Handbook.
6.2 Contour shall use Commercially Reasonable Efforts to ensure that Upgrades provided by Contour will not: (a) degrade, impair or otherwise adversely affect the performance or operation of the Contour Application; or (b) remove any material functionality of the Contour Application. Contour shall adhere to the ‘Upgrading Policy’ section of the Support Handbook when issuing Upgrades to the Contour Application, but Member expressly acknowledges that such Upgrades may change the functionality of the Contour Application and integration with other systems.
6.3 The Member acknowledges and agrees that in the event updates to the Member’s linked applications are needed to ensure compatibility with Upgrades to the Contour Application, the Member shall be responsible for making such changes.
7. Contour Application Support Services
Contour shall provide the Contour Application Support Services for the Agreement Term in accordance with the ‘Support Policy’ section of the Support Handbook.
8. Restrictions On Use
8.1 As an express condition of the grant of the Licences, Member is at all times prohibited from using the Licensed Materials for any purpose not expressly permitted by this Agreement. Member will not provide or otherwise make available any parts of the Licensed Materials in any form, to any person or entity other than as allowed by this Agreement.
8.2 Member will not directly or indirectly, whether through Member, its Affiliates or any Third Party (including Member Service Providers) do any of the following except as specifically permitted by this Agreement:
8.2.1 license, sublicense, assign, sell, rent, resell, lease, distribute or otherwise transfer Member’s right under this Agreement or use or permit the use of the Licensed Software to provide service bureau, timeshare for a Third Party, outsourcing or other similar services or otherwise market the Licensed Software or in any way disclose or allow others to use or benefit from the Licensed Software;
8.2.2 copy, reproduce, publish, reverse engineer (except to the extent permitted under Applicable Law), disassemble, reverse assemble, convert, translate, merge, decompile, create derivative works from, or attempt to create, generate or access Source Code from the Licensed Materials;
8.2.3 adapt, modify or replicate any features, functions, integrations, or interfaces of the Licensed Software or any portion thereof;
8.2.4 take any action to introduce any Harmful Code in or to the Licensed Software, including through any other code used by the Member in connection with the Licensed Software. If the Member becomes aware of the existence of any Harmful Code in or relating to any other code used by the Member in connection with the Licensed Software, the Member shall promptly notify Contour and follow all instructions provided by Contour in that regard;
8.2.5 remove, destroy, modify, conceal, manipulate or obscure proprietary rights notices placed on the Licensed Materials, screens or pages with any copyright notices or confidential legends placed upon or contained within the Licensed Materials, or any other related materials;
8.2.6 circumvent, interfere with, disrupt or disable any security or other technological features or measures of the Licensed Software;
8.2.7 modify or alter the tables or files therein relating to the Licences, including any Billable Event record, Contour Identity record or any usage statistics access; or
8.2.8 combine the Licensed Software with any Copyleft Open-Source Software in any manner that could require that the Licensed Software, any portion thereof, or any Adaptation and Modification thereof to be (i) disclosed or distributed in Source Code form, (ii) licensed for the purpose of making derivative works, or (iii) redistributable at no charge.
8.3 Where the Member is a Self-Managed Member, the Member shall take all reasonable steps necessary to ensure that no Person shall have unauthorised access to the Licensed Software, including implementing technical and operational measures consistent with good industry practice and in compliance with Applicable Law (and in no event less than the measures employed to protect the Member’s own proprietary technology) to restrict access to the Licensed Software.
8.4 The Member acknowledges and agrees that it shall only Use the Contour Application through the user interface and the application program interfaces published as part of the Contour Application.
8.5 The Member shall ensure that all passwords, logins and access codes used to access the Member’s account(s) on the System are kept secure and are not disclosed to any unauthorised persons, and shall inform Contour immediately of any actual or suspected loss or compromise of such passwords, logins and/or access codes. The Member shall be liable for all activities that occur through the Member’s account(s) and any other actions in relation to such account(s), and Contour may act upon any instructions and/or information provided through such account(s).
9. Payment Terms
9.1 In consideration of Contour providing the Services, the Member shall pay the Fees as set out in, and in accordance with, each Order Form, Hosting Schedule and Product Schedule (as applicable to the Member).
9.2 The Member may, at its reasonable discretion, nominate a separate billing entity in an Order Form (“Nominated Billing Entity”) to facilitate payment of the Fees to Contour on behalf of the Member, provided that:
9.2.1 The Member shall remain fully liable and responsible to Contour for the timely payment of the Fees by the Nominated Billing Entity as if paid by the Member itself; and
9.2.2 The Member shall remain the single point of contact for Contour with respect to payment of the Fees.
9.3 All Fees are payable within thirty (30) days of receipt of the relevant invoice from Contour, and shall be remitted to Contour via electronic transfer to the following bank account (or any other bank account notified by Contour from time to time):
Bank Name: DBS Bank Ltd
Bank Swift Code: DBSSSGSG
Account No: 072-017132-2
Bank Code: 7171
Branch Code: 072
Bank Address: 12 Marina Boulevard, DBS Asia Central @ MBFC Tower 3, Singapore 018982
9.4 If any part of the Fees under an Order Form is subject to a bona fide dispute between the Member and Contour, the following provisions shall apply:
9.4.1 the Member shall pay all amounts not disputed (including amounts payable under other Order Forms, as applicable) in good faith by the Member in accordance with this Clause 9 of Part A;
9.4.2 the Member shall notify Contour within thirty (30) days after the date of its receipt of the relevant invoice of any disputed items and describe in reasonable detail the Member’s reasons for disputing each item;
9.4.3 the Parties shall seek to reach settlement on the items that are the subject of the dispute in accordance with Clause 24 of this Part A; and
9.4.4 once the dispute has been settled in favour of Contour, the Member shall pay those Fees within fifteen (15) days.
9.5 Without prejudice to its other rights and remedies, Contour may charge, and the Member shall pay, interest, accruing daily from the due date to the date of actual payment, on any undisputed amounts that are overdue under this Agreement at the rate of five per cent. (5%) per annum compounded monthly.
9.6 All Fees payable under this Clause 9 of Part A shall be paid in full and without any set-off or deduction of whatever nature.
9.7 If a purchase order or similar issued by the Member is required to effect payment, the Member shall issue such purchase order or similar to Contour without delay of a request to that effect.
9.8 Taxes. The amounts payable under this Agreement are exclusive of any present or future sales, use, value added, withholding or other similar taxes (including GST) imposed upon the provision of the Services, however designated, which may be levied or imposed (collectively, “Taxes“). Where such Taxes are properly chargeable on the supply of Services made pursuant to this Agreement, the Member will be responsible for paying such Taxes on production of valid tax invoices by Contour.
9.9 Withholding tax. Subject to Clause 9.8, where any Fees are subject by Applicable Law to withholding tax:
9.9.1 the Member will make separate payment:
(a) to the relevant local taxation authority, of the appropriate withholding tax; and
(b) to Contour, of an amount, exclusive of any withholding tax, equal to the Fees payable by the Member under this Agreement.
9.9.2 payment of such sums to Contour and the relevant local taxation authority (if applicable) pursuant to Clause 9.9.1 will constitute full settlement of the sums owing pursuant to the relevant invoice;
9.9.3 on written request, Member will provide any necessary evidence that may be reasonably required by Contour of the payment of the relevant withholding tax; and
9.9.4 each Party shall, on written request from the other Party, provide a declaration of tax residence on the prescribed forms and obtain certification by the relevant local taxation authority in order to confirm the applicability and availability of any reduced rate of withholding tax pursuant to the provisions of any relevant double taxation treaties. The Member acknowledges and agrees that the obtaining of any declaration or certification of tax residence shall not preclude its timely payment of the Fees to Contour.
9.10 Additional fees. The amounts payable under this Agreement are exclusive of any bank processing or administrative fees (as applicable) which may be incurred by the Member. Where such additional fees are incurred by the Member in connection with this Agreement, the Member shall be fully responsible for payment of such fees.
10. Termination / Suspension
10.1 Each Party may, without prejudice to its other rights and obligations under this Agreement, terminate this Agreement or any Order Form immediately by notice in writing to the other Party if:
10.1.1 the other Party is in material breach of its obligations under this Agreement and such breach is incapable of remedy or the other Party has failed to remedy such breach within thirty (30) days of receiving written notice to do so;
10.1.2 the other Party commits a series of breaches that:
(a) by themselves may not be material;
(b) are notified to the other Party; and
(c) are not remedied within thirty (30) days of being notified to do so,
if, in the aggregate, such uncured breaches would amount to a material breach;
10.1.3 any Force Majeure Event fulfilling the provisions of Clause 26.2.1 of this Part A continues for a period of thirty (30) days; or
10.1.4 an Insolvency Event occurs with respect to the other Party.
10.2 Consequences of Expiry / Termination.
10.2.1 Subject to Clause 10.2.2, where an Order Form expires or is terminated in accordance with this Agreement, the Member shall pay all outstanding amounts due to Contour under the Order Form within thirty (30) days of expiry or termination of that Order Form.
10.2.2 Where this Agreement expires or is terminated in accordance with its terms (including if there are no Order Forms currently active):
(a) the Member shall pay all outstanding amounts due to Contour under this Agreement within thirty (30) days of expiry or termination of the Agreement;
(b) the Member shall immediately discontinue Use of the Licensed Software and use of all related documentation (including the Licensed Documentation and the Support Handbook), and the Member shall cease to use all Relevant IP;
(c) the Member shall cease to be a “Member” (as such term is defined in the Rulebook) of the Platform, and the Member shall comply with its obligations in the Rulebook in respect of the termination of the Rulebook;
(d) subject to Clause 10.2.1(f) of this Part A, each Party shall promptly return to the other Party or destroy all copies of Confidential Information of the other Party under the control of such Party and its Representatives (and, in the case of the Member, the Member Service Providers). Notwithstanding the foregoing, a Party may retain Confidential Information of the other Party which that Party is required to retain pursuant to any Applicable Law;
(e) where the Member is a Self-Managed Member, the Member shall return or destroy all copies of the Licensed Software, as well as all related documentation (including the Licensed Documentation and the Support Handbook), in its possession or under its control (including in the possession or control of the Member Service Providers);
(f) where the Member is a Cloud Member, before complying with the provisions of Clause 10.2.1(d) of this Part A, Contour shall provide the Member with a copy of any Member Data in Contour’s possession in accordance with the ‘Offboarding’ section of the Support Handbook; and
(g) to the extent that a Member requires assistance from Contour to facilitate the Member’s transition from the System, the Member shall provide Contour with a written description of such assistance no less than one (1) month prior to the expiry or termination of this Agreement, and the Parties shall use Commercially Reasonable Efforts to discuss and agree the scope and applicable fees payable in respect of such assistance.
10.2.3 The expiry or termination of this Agreement or any Order Form shall not affect any accrued rights or liabilities of either Party (including any right to receive payments for Fees which are due but unpaid before expiration or termination), nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into force or continue in force on or after termination (including, but not limited to, Clauses 3, 8, 9, 10.2, 12, 13, 14, 18, 19, 20, 21, 22, 23, 24 and 26 of Part A, Clauses 7, 8 and 9 of Schedule 1 of Part B, Clauses 6 and 7 of Part D, Part E, Part F and Part H).
10.3.1 Contour shall have the right to temporarily suspend the Member’s Use of the Contour Application in the event that such Use materially interferes with the use of the Platform by the other Members of the Platform until such time as Contour and the Member have discussed in good faith and remedied the relevant issue.
10.3.2 The Member shall not be required to pay any Transaction Fees in respect of each Contour Identity suspended pursuant to Clause 10.3.1 of this Part A during the period of the suspension.
11. Representations and Warranties
11.1 General Representations and Warranties – Contour and Member. Each Party hereby represents and warrants to the other Party, as of the Agreement Date, that:
11.1.1 such Party is duly organized and validly existing under the laws of its jurisdiction of incorporation or organization;
11.1.2 such Party shall comply with Applicable Law (including anti-corruption and anti-money laundering laws) in connection with performance of its obligations under this Agreement;
11.1.3 such Party is not at the Agreement Date the subject of an Insolvency Event and is not aware of any such risk;
11.1.4 the execution, delivery and performance of this Agreement and the performance of its obligations thereunder have been duly approved and authorised by all necessary actions of such Party, and this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms;
11.1.5 there are no proceedings pending or, to the actual knowledge of such Party, threatened or contemplated against such Party (i) asserting the invalidity of this Agreement, (ii) seeking any determination or ruling that could materially and adversely affect the exercise by such Party of its rights or performance by such Party of its obligations under this Agreement or (iii) seeking any determination or ruling that could materially and adversely affect the validity or enforceability of this Agreement; and
11.1.6 to such Party’s actual knowledge, neither it nor any of its officers, directors or principals is a Person: (i) named on any of the following lists maintained by the US Office of Foreign Assets Control: the Specially Designated Nationals List, the Sectoral Sanctions Identifications List and Non-SDN Iranian Sanctions List, any list of geographic territories subject to comprehensive restrictions (e.g., Cuba, Iran, Sudan, Syria, North Korea, and the Crimea Region of Ukraine), (ii) named on the EU Consolidated List, the UK HM Treasury Consolidated List, the Monetary Authority of Singapore’s Lists of Designated Individuals and Entities, or the Consolidated United Nations Security Council Sanctions List, (iii) which resides or transacts, or is organized under the laws of a country (1) designated as non-cooperative with anti-money laundering laws by a Governmental Authority, including the Financial Action Task Force, or (2) designated as warranting USA Patriot Act Section 311 “special measures”, or (v) which is a “senior foreign political figure” as such term is defined in the USA Patriot Act.
11.2 Specific Representations and Warranties – Contour. Contour hereby represents and warrants to the Member, as of the Agreement Date, that:
11.2.1 Contour own or has all necessary rights to grant the license, sublicense or use rights (as applicable) to the Licensed Materials in this Agreement;
11.2.2 Contour has used Commercially Reasonable Efforts to provide that the Licensed Software is free from Harmful Code;
11.2.3 the Licensed Software shall correspond to the relevant Licensed Documentation in all material respects after giving effect to the correction of any defects or issues performed through the support services set out in this Agreement (including the Contour Application Support Services in the case of the Contour Application), provided such defects or issues do not result from the Member or anyone acting on its behalf (including the Member’s Affiliates and the Member Service Providers where applicable), having modified the Licensed Software or used it in breach of the licence rights and restrictions under this Agreement; and
11.2.4 all Contour Application Support Services will be provided in a competent and professional manner.
12.1 Except for the express provisions set out in this Agreement, to the maximum extent permitted by law: (a) the Services are provided “as is”, “where is” and “as available”, and Contour expressly disclaims all warranties, conditions, or other terms, whether implied or statutory (including warranties of merchantability, fitness for purpose, or warranties with respect to satisfactory quality, and/or performance of, the Services and/or the accuracy or reliability of the results thereof); and (b) Contour does not represent, warrant or provide any other form of guarantee that the Services meet the Member’s requirements, operate without interruption or are error free.
12.2 Contour shall not be responsible for any delays or technical problems arising from use of the Licensed Software in connection with the internet or other forms of electronic communications that are not within Contour’s, its Affiliates’ or the Subcontractor’s control.
12.3 The Member acknowledges and agrees that, in connection with the Use of the Licensed Software to run applications developed by a Third Party or that access data, content or resources provided by a Third Party, Contour shall have no responsibility for those applications, data, content, or resources. The Member acknowledges and agrees that its use of such Third Party applications, data, content, or resources is subject to the relevant agreement between the Member and the applicable Third Party.
12.4 Contour makes no representation that the Licensed Software is sufficient to enable the Member to comply with any Applicable Laws applicable to the Member, and any such determination must be made by the Member in its sole discretion.
13.1 Intellectual Property Indemnification by Contour.
13.1.1 Subject to the remainder of this Clause 13.1 of this Part A, Contour, at its own expense, will indemnify, defend and hold harmless the Member Indemnitees from and against any and all Losses directly resulting from any Third Party Claim against any Member Indemnitee alleging that the Licensed Materials infringes on, constitutes a misappropriation of or otherwise violates any Intellectual Property right of any Third Party.
13.1.2 If any Licensed Materials are found to be infringing, or if at any time Contour reasonably believes that any Licensed Materials may be subject to a claim of infringement, then Contour may choose to (in addition to the indemnification obligations set forth in Clause 13.1.1 of this Part A):
(a) at Contour’s expense, Adapt and Modify the applicable portions of the Licensed Materials to be non-infringing, provided that such Adaptations and Modifications do not degrade the functionality and performance of the Licensed Materials;
(b) at Contour’s expense, obtain a right for Member to continue using the infringing portions of the Licensed Materials; or
(c) if neither of the foregoing is commercially practicable, terminate this Agreement.
13.1.3 Contour’s indemnity obligations set out in Clause 13.1.1 of this Part A will not apply to any resulting Losses to the extent caused by or arising out of:
(a) the Member’s use of the Licensed Materials in violation of this Agreement, the relevant Licensed Documentation or Applicable Law;
(b) data, hardware, Software or other materials not provided by Contour;
(c) where the Member is a Self-Managed Member, the Member’s failure to implement any Upgrade to the Licensed Software provided by Contour where the implementation of such Upgrade would have avoided the infringement;
(d) the Member’s use of a Licensed Material after written notice from Contour or any Governmental Authority that that Licensed Material infringes on, constitutes a misappropriation of or otherwise violates any Intellectual Property right of any Third Party;
(e) any Adaptations and Modifications to the Licensed Materials made by the Member or any other person or entity (other than Contour or R3, or their respective Affiliates or subcontractors); or
(f) the Member’s use of the Licensed Materials in combination with any Software, hardware, materials or service not provided by Contour, except to the extent that such claim of infringement is attributable to the Licensed Software.
13.1.4 This Clause 13.1.4 of this Part A sets forth the Member’s sole and exclusive remedy and Contour’s only liability with respect to any and all Losses directly resulting from any Third Party Claim against any Member Indemnitee alleging that the Licensed Materials infringes on, constitutes a misappropriation of or otherwise violates any Intellectual Property right of any Third Party.
13.2 Indemnification by Contour. Contour, at its own expense, will indemnify, defend and hold harmless the Member Indemnitees from and against any and all Losses directly resulting from any Third Party Claim against any Member Indemnitee:
13.2.1 arising from any breach of Applicable Law by Contour in connection with this Agreement; or
13.2.2 arising from Contour’s breach of its obligations under Clause 21 of this Part A.
13.3 Indemnification by Member. Member, at its own expense, will indemnify, defend and hold harmless the Contour Indemnitees from and against any and all Losses directly resulting from any Third Party Claim against any Contour Indemnitee:
13.3.1 arising from any breach of Applicable Law by Member in connection with this Agreement; and
13.3.2 arising from the Member’s breach of its obligations under Clause 21 of this Part A.
13.4 Indemnification Procedures.
13.4.1 The obligations of the indemnifying party under any indemnities provided in this Agreement are conditioned upon: (a) the indemnifying party receiving written notice of an actual or threatened proceeding or claim within ten (10) calendar days of indemnified party first becoming aware of such proceeding or claim (provided, the indemnifying party will be relieved of its obligations under this Agreement only to the extent such indemnifying party is actually prejudiced by the indemnified party’s delay) and (b) indemnified party reasonably cooperating with indemnifying party in the investigation and defence of each such proceeding or claim.
13.4.2 The indemnifying party will have the sole right to control and direct the investigation, defines and settlement of each such proceeding or claim, provided, however, that any such settlement will not impose any liability on indemnified party.
14.1 Nothing in this Agreement (including this Clause 14 of this Part A) shall exclude or restrict either Party’s liability:
14.1.1 for death or personal injury resulting from the negligence of that Party or of its employees;
14.1.2 for fraud or fraudulent misrepresentation;
14.1.3 under its obligations to provide an indemnity under this Agreement;
14.1.4 under any provision in this Agreement where a debt or payment is due;
14.1.5 breach of Clauses 8.1, 8.2 and 21 of Part A; or,
14.1.6 any other matter may not otherwise be limited or excluded under Applicable Law.
14.2 Subject to Clause 14.1 of this Part A, neither Party shall be liable (whether in contract, tort, misrepresentation, under statute or otherwise, howsoever caused including by negligence) for any of the following categories of Losses arising out of or in connection with this Agreement:
14.2.1 incidental, special, indirect or consequential losses; or
14.2.2 loss of profits, loss of business, loss of opportunity or loss of goodwill.
14.3 A failure by Contour to perform any of its obligations under this Agreement shall be excused if, and to the extent that, the failure results from a Relief Event.
14.4 Subject to Clause 14.1 and Clause 14.2 of this Part A, each Party’s total aggregate liability to the other Party, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in relation to this Agreement shall be limited to two hundred per cent (200%) of the Fees paid or payable in the 12 months prior to the date of the first claim made by the Party.
14.5 Each Party agrees that it has a duty (whether under Applicable Law or the terms of this Agreement) to mitigate its losses incurred in relation to this Agreement.
14.6 The Member acknowledges and agrees that its contractual relationship is with Contour pursuant to the terms of this Agreement and it shall not, and shall ensure that its Affiliates and the Member Service Providers shall not, make any claims directly against any of the Subcontractors or their respective Affiliates in connection with the Services and this Agreement.
Contour will obtain, pay for and maintain in full force and effect during the Agreement Term adequate insurance having regard to its liabilities under this Agreement and Applicable Law.
16.1 Member Audit.
16.1.1 Contour agrees that the Member shall have the right to visit the facilities of Contour (which may only take place during regular business hours on Business Days) for the purpose of performing audits or inspections for the following purposes:
(a) for the Member to be able to comply with Applicable Laws or requests by Regulators;
(b) (only where the Member is a Cloud Member) to determine if the Cloud Services are provided in compliance with the terms of this Agreement;
(c) to review the conduct of Contour’s operations and procedures, including data processing activities and controls, to verify that they comply with the requirements of this Agreement; and
(d) to determine the accuracy of the Fees.
16.1.2 In connection with any audits and inspections carried out pursuant to Clause 16.1.1 of this Part A:
(a) Contour shall not be obliged to provide information which: (i) specifies Contour’s actual costs incurred in performing the Services; (ii) relates to other members of the Platform; or (iii) cannot be provided under Applicable Law; and
(b) Auditors shall not be granted access to any: (i) facilities, equipment or Software which are shared with other members of the Platform; or (ii) the information and data pertaining to other members of the Platform.
16.1.3 Such audits and inspections may be conducted by the Member’s internal staff, by Regulators and by independent third parties retained by the Member or by Regulators (“Auditors“)).
16.1.4 The Member may exercise its right to conduct an audit or inspection pursuant to Clause 16.1.1 of this Part A not more than once in any twelve (12) month-period (except if a Regulator requires additional audits or inspections or if Contour agrees to additional audits or inspections), and all audits and inspections shall be conducted in the presence of a Contour representative.
16.1.5 The Member shall give Contour at least one (1) month’s prior notice of its intention to conduct an audit or inspection pursuant to this Clause, unless the Member’s Regulator has required the audit and the Member is unable to give one (1) month’s notice, in which case the Member shall give as much advance written notice as may be reasonably practicable in the circumstances.
16.1.6 The Member shall comply with its obligations under Clause 21.7.1 in respect of the Auditors.
16.1.7 Contour shall provide all reasonable assistance, support and cooperation and shall provide information reasonably requested by the Member or the Auditors as necessary for them to conduct an audit.
16.2.1 If requested by the Member, Contour shall provide reasonable assistance, support, cooperation and information in respect of any request or enquiry made by a relevant Regulator with respect to the Cloud Services.
16.2.2 If a request is made by a relevant Regulator directly to Contour, Contour shall notify the Member (to the extent that Contour is permitted to do so under Applicable Law) and shall use reasonable endeavours to respond within the timeframe required by the Regulator.
16.3 Contour shall promptly notify the Member of any developments which are reasonably likely to have a material adverse impact on Contour’s ability to provide the Services in accordance with this Agreement.
16.4 Contour may make a reasonable charge for providing assistance and allowing access as set out in this Clause 16 of this Part A in accordance with Contour’s standard rates.
17. Disaster Recovery & Business Continuity Plan
17.1 Contour shall develop and periodically update an integrated disaster recovery and business continuity and contingency plan relating to the provision of the Services (“Disaster Recovery & Business Continuity Plan“), which will aim to:
17.1.1 support Contour’s business continuity and ability to recover from a Disaster; and
17.1.2 for Cloud Members, support provision of the Cloud Services in respect of the Member’s User Node(s).
17.2 The Disaster Recovery & Business Continuity Plan shall:
17.2.1 detail services and disaster recovery procedures and plans, and contingency alternatives (including priorities to be accorded and resources to be allocated) designed to minimise the impact of any Disaster on the provision of the Services in accordance with this Agreement;
17.2.2 outline the major foreseeable Disasters which may lead to the need to invoke the Disaster Recovery & Business Continuity Plan; and
17.2.3 describe Contour’s, the Subcontractors’ and the Member’s specific responsibilities and dependencies upon invocation of the Disaster Recovery & Business Continuity Plan and specifies lines of communication between Contour and the Member in such circumstances.
17.3 Contour shall:
17.3.1 make the Disaster Recovery & Business Continuity Plan available to the Member in the ‘Disaster Recovery’ section of the Support Handbook (as amended and updated from time to time), accessible at: https://docs.contour.network/home/support_handbook/bcp/;
17.3.2 review and update the Disaster Recovery & Business Continuity Plan on an annual basis, and upon any material changes to the Services, so as to ensure that the Disaster Recovery & Business Continuity Plan remains operational;
17.3.3 test the Disaster Recovery & Business Continuity Plan on an annual basis, and permit the Member to participate in, or inspect the results of, such tests following submission of a written request by the Member, to verify that the Disaster Recovery & Business Continuity Plan serves the purpose described in Clause 17.2 of this Part A; and
17.3.4 use Commercially Reasonable Efforts to make any amendments to the Disaster Recovery & Business Continuity Plan that are agreed by the Parties following the testing conducted pursuant to Clause 17.3.3.
17.4 Contour shall implement the Disaster Recovery & Business Continuity Plan in the event of a Disaster and shall comply with its obligations under the Disaster Recovery & Business Continuity Plan.
17.5 Contour shall promptly notify the Member:
17.5.1 if the Disaster Recovery & Business Continuity Plan is implemented;
17.5.2 upon becoming aware of any Disaster or other adverse event or circumstances that may significantly affect the ability of Contour to provide the Services in accordance with this Agreement; or
17.5.3 of any significant changes to the Disaster Recovery & Business Continuity Plan.
18. Member Data and Information
18.1 Member Data.
18.1.1 All data created or transferred by Member and the Member Service Providers using the Licensed Software (including any data relating to transactions entered into by Member and any third parties) (“Member Data“), including all Intellectual Property, title and interest therein are owned by, and are proprietary to, the Member.
18.1.2 The Member hereby grants Contour:
(a) a worldwide, limited, non-exclusive, non-transferrable right to access and use Member Data for the purposes of enabling Contour to provide technical support to the Member in accordance with the ‘Support Policy’ section of the Support Handbook;
(b) a worldwide, limited, non-exclusive, right to access and use the “Contour Identity”, “Event Type” and “Event Datetime” metadata derived from the Member Data in aggregate form (the “Billing Data“), for the purposes of enabling Contour to determine the number of Billable Events carried out by the Member and the relevant Fees payable by the Member; and
(c) a worldwide, limited, non-exclusive, transferable (only to R3 and its Affiliates) right to access and use metadata derived from the Member Data in aggregate form to determine the number of “Corda Signing Events” and “Corda Transaction Notarisations” carried out by the Member for the purposes of enabling Contour to comply with its obligations under the R3 Agreement and the CNS Agreement.
18.1.3 Except as set out in Clause 18.1.2 of this Part A, Contour shall not access, transfer, re-sell or otherwise use any Member Data.
19. Intellectual Property Rights
19.1 Contour IP.
19.1.1 The following, including all Intellectual Property, title and interest therein, and all Upgrades and other Adaptations and Modifications (as applicable) (including as developed by Contour in the course of providing the Contour Application Support Services to the Member), are owned or licensed by, and are proprietary to, Contour:
(a) the Contour Application;
(b) the Contour Application Documentation and Support Handbook;
(c) the Rulebook and any Circulars (as such terms are defined in the Rulebook) (“Platform Documents“); and
(d) all trademarks, service marks, trade names, logos or other words or symbols identifying Contour, the Contour Application or the Contour business,
(collectively, “Contour IP“).
19.1.2 Except as expressly provided in this Agreement, Contour grants no rights or licences in or to the Contour Application or the Object Code or Source Code of the Contour Application, and all rights and licences not expressly granted in this Agreement are hereby reserved by Contour. No title to or ownership of any part of the Contour IP or proprietary rights related thereto is transferred to the Member under this Agreement.
19.2 The Member shall use all reasonable efforts to protect the Relevant IP and cooperate with Contour, at Contour’s reasonable request, in Contour’s efforts to protect the Relevant IP. The Member shall report to Contour any actual or apparent infringement of any Relevant IP as well as any improper or unauthorised use of the Relevant IP that comes to the Member’s attention. The Member acknowledges and agrees that Contour has the sole authority to deal with any and all issues of infringement or improper or unauthorised use of Relevant IP or other proprietary rights of Contour or its licensors.
19.3 Feedback. The Member understands and agrees that at any time and from time to time the Parties may engage in general discussions and/or provide feedback or exchange general information and ideas with respect to the Licensed Software (such discussions, information, ideas or feedback, “Feedback“). The Member agrees that any such Feedback and associated Intellectual Property rights shall be voluntarily given and will become the property of Contour, and hereby assigns and agrees to assign all right, title and interest in and to such Feedback and associated Intellectual Property rights to Contour. Contour shall have the right to use such Feedback subject to the confidentiality obligations set out in Clause 21 of this Part A to the extent that the Feedback contains Confidential Information.
19.4 Use of Contour Branding.
19.4.1 The Member shall be permitted to use the Contour Branding solely in connection with the receipt of the Services and provided that any use is in compliance with the policy set out at https://www.contour.network/brand-guidelines.
19.4.2 The Member agrees not to:
(a) use any Contour Branding or any part thereof as or as part of a corporate business or trade name;
(b) use or combine the Contour Branding with any other words, marks, logos or devices without the prior written consent of Contour;
(c) use, develop or seek to register any name logo, symbol or other mark or designation that includes, is confusingly similar to, is a derivation or colourable imitation of, or competes with, the Contour Branding; or
(d) exploit the Contour Branding in any manner which is misleading or deceptive or compromises or reflects unfavourably upon the good name, goodwill, reputation or image of Contour.
19.4.3 Contour shall not use any of the Member’s trademarks and logos without the prior written consent of the Member.
20. Data Privacy
21. Confidential Information and Publicity
21.1 The provisions of this Clause 21 of this Part A shall supersede and replace any non-disclosure agreements relating to the same subject matter previously entered into between Contour and the Member.
21.2 All confidential, non-public information that one Party (the “Receiving Party“) and its Representatives receives from the other Party (the “Disclosing Party“) and its Representatives in its performance of this Agreement that is marked “confidential” or that the Receiving Party knows, or reasonably should know, is confidential to the Disclosing Party, including any: (a) Software (including the Licensed Materials) and Intellectual Property, (b) information relating to the Disclosing Party’s and its Affiliates’ business and business strategies, markets, customers, products, pricing, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flow and prospects, or employees, officers, contractors and agents, including, without limitation, technical, commercial, financial, accounting, legal and administrative information, (c) the existence of and the terms of this Agreement, as well as the Disclosing Party’s position in any dispute in relation to this Agreement, and (d) any Member Data (collectively, “Confidential Information“) will be held in confidence and will not, without the express written consent of the Disclosing Party, be used or disclosed except in accordance with Clause 21.7 of this Part A.
21.3 Information shall not be considered Confidential Information to the extent that it: (a) is in the public domain at the time of its disclosure by the Disclosing Party or thereafter; (b) was properly in the Receiving Party’s or its Representatives’ possession prior to such disclosure by the Disclosing Party without breach of this Clause 21 of this Part A; or (c) was disclosed to Receiving Party or any of its Representatives by a Third Party who did not obtain such information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation (including under this Clause 21 of this Part A).
21.4 The Receiving Party shall exercise at least the same standard of care to protect such information from unauthorized disclosure or use as it uses to protect its own confidential information of a similar nature, which in no event shall be less than reasonable care.
21.5 The Receiving Party agrees that, either upon learning of any threatened or actual unauthorised use or disclosure of the Confidential Information of the Disclosing Party by the Receiving Party’s Representatives or the Member Service Providers (in the case of the Member), or in the event of any loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party will promptly notify the Disclosing Party thereof and will cooperate as reasonably requested by the Disclosing Party to prevent or curtail such unauthorised use or disclosure, or to recover such Confidential Information.
21.6 The Receiving Party shall only use the Disclosing Party’s Confidential Information in connection with the subject matter of this Agreement and in no event use the Disclosing Party’s Confidential information in a manner or for a purpose that is adverse to the interest or the business of the Disclosing Party or its Affiliates.
21.7 The Receiving Party may disclose the Disclosing Party’s Confidential Information:
21.7.1 to those of the Receiving Party’s Representatives who are bound to substantially similar obligations of confidentiality as this Clause 21 of this Part A and have a need to receive the Confidential Information in connection with this Agreement, provided that the Receiving Party shall remain responsible and liable for the acts and omissions of such Representatives to the same extent as if performed by the Receiving Party;
21.7.2 to the Pre-Approved Subcontractors (as identified in Clause 25.2.2 of this Part A) to the extent reasonably necessary for Contour to perform its obligations under this Agreement;
21.7.3 to the Member Service Providers solely to the extent reasonably necessary for the Member to exercise its rights under Clause 8 of Schedule 1 of Part B, provided that the Member shall remain responsible and liable for the acts and omissions of such Member Service Providers to the same extent as if performed by the Member;
21.7.4 to the extent that the Receiving Party or its Representatives are required to in a judicial, legislative, or administrative investigation or proceeding or to a government or other regulatory agency, provided that, to the extent permitted by the circumstances, the Receiving Party provides to Disclosing Party prior written notice of the intended disclosure to enable the Disclosing Party the reasonable opportunity to contest or limit such disclosure (including reasonable assistance at Disclosing Party’s expense) or, if prior written notice is not permitted, prompt notice of such disclosure; and
21.7.5 upon the prior written consent of the Disclosing Party.
21.8 Each Party acknowledges that the disclosure of Confidential Information in breach of this Clause 21 of this Part A may cause irreparable injury to the Disclosing Party. Therefore, each Party may be, upon a disclosure or threatened disclosure of any Confidential Information in breach of this Clause 21 of this Part A, entitled to seek injunctive relief. This provision shall not in any way limit such other remedies as may be available to such Party at law or in equity.
21.9 Neither Party shall make any public announcements relating to this Agreement or the Services to be provided under this Agreement without the prior written consent of the other Party.
22.1 Each Party covenants that it and its Affiliates will not, and nor will any of their respective officers, employees, shareholders, representatives, agents or contractors (“Associated Parties“), directly or indirectly, make or offer any payment, gift or other advantage with respect to any matters which are the subject of this Agreement which (i) would violate any anti-corruption laws or regulations applicable to either Party or their respective Affiliates; (ii) is intended to, or does, influence or reward any person, including but not limited to any employee, contractor or agent of either Party or its Affiliates, for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept; or (iii) is made to or for a Public Official with the intention of influencing him or her so as to obtain or retain an advantage in the conduct of business. In the spirit of this covenant, each Party agrees to limit hospitality provided to any employee, contractor or agent of the other Party or its Affiliates to reasonably priced working meals or refreshments.
22.2 Each Party covenants that neither it nor its Associated Parties will make or pay any facilitating or expediting payment in connection with this Agreement to a Public Official the purpose of which is to expedite or to secure the performance of a routine governmental action by a Public Official.
22.3 Each Party shall promptly report to the other Party any request or demand for any undue financial or other advantage of any kind received by the first Party or any of its Associated Parties in connection with this Agreement.
22.4 Breach of the foregoing covenants and representations shall be grounds for termination or suspension of this Agreement by the other Party at its sole discretion.
23. Export Controls
Member acknowledges that Software delivered to the Member under this Agreement may be subject to the export control restrictions of the U.S. Export Administration Regulations (“EAR“) and Regulation (EC) No 428/2009 (as amended) (“Regulation 428/2009“), and other U.K., U.S. and foreign export and import laws (“Other Applicable Export Laws“), and that the Licensed Software may not be re-exported or otherwise retransferred except in accordance with the U.S. EAR, Regulation 428/2009, and Other Applicable Export Laws. Additionally, Member agrees that, (a) absent appropriate authorization from the U.S. or U.K. governments, the Licensed Software may not be exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to a U.S. of U.K. trade embargo; (ii) to any person or entity on the U.S. Treasury Department’s Specially Designated Nationals List (“SDN“) or the U.S. Department of Commerce’s Denied Parties List, nor to an entity more than 50% owned by a person or entity on the SDN; or (iii) for any purpose or end-use that is otherwise prohibited by the U.S. EAR, and (b) absent appropriate authorization from the U.K. government, no Software may be exported or re-exported: (i) into any country subject to European Union or U.K. sanctions or restrictive measures (including to a natural or legal person, body or entity which is owned or controlled by one or more parties subject to European Union or U.K. economic sanctions/restrictive measures); (ii) either directly or indirectly to any natural or legal person, body or entity listed as parties subject to European Union or U.K. economic sanctions/restrictive measures; or (iii) for any purpose or end-use that is prohibited by Regulation 428/2009 or Other Applicable Export Laws.
24. Governing Law and Jurisdiction
24.1 Governing Law. This Agreement and any non-contractual rights and obligations arising under or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.
24.2 Dispute Resolution.
24.2.1 Any Dispute shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC“) in accordance with the Arbitration Rules of SIAC (the “Arbitration Rules“) for the time being in force, which Arbitration Rules are deemed to be incorporated by reference in this Clause 24.2 of this Part A. The seat of the arbitration shall be Singapore and the language shall be English. The arbitration agreement shall be governed by the laws of England and Wales.
24.2.2 The arbitration tribunal (“Tribunal“) shall consist of three (3) arbitrators. Each Party shall nominate one arbitrator, and the two arbitrators thus appointed shall nominate the third arbitrator who shall be the presiding arbitrator. If within fourteen (14) days of a request from the other Party to do so a Party fails to nominate an arbitrator, or if the two arbitrators fail to nominate the third arbitrator within fourteen days (14) after the appointment of the second arbitrator, the appointment shall be made, upon request of a Party, by the President of the Court of Arbitration of SIAC in accordance with the Arbitration Rules.
24.2.3 Any award of the Tribunal (the “Award“) shall be made in writing and shall be final and binding on the Parties from the day it is made. The Parties undertake to carry out the award without delay.
24.2.4 The Parties waive any right to apply to any court of law and/or other judicial authority to determine any preliminary point of law and/or review any question of law and/or the merits, insofar as such waiver may validly be made. The Parties shall not be deemed, however, to have waived any right to challenge any Award on the ground that the Tribunal lacked substantive jurisdiction and/or on the ground of serious irregularity affecting the Tribunal, the proceedings or the award to the extent allowed by the law of the seat of arbitration. Nothing in this Clause 24.2 of this Part A shall be construed as preventing any Party from seeking conservatory or interim relief from any court of competent jurisdiction.
25. Subcontracting by Contour
25.1 Contour shall not subcontract or otherwise delegate the performance of any of its obligations under this Agreement other than pursuant to this Clause 25 of this Part A.
25.2 Any subcontracting by Contour will be subject to the Member’s prior written approval, other than:
25.2.1 subcontracting to a Contour Affiliate;
25.2.2 subcontracting to the following subcontractors (the “Pre-Approved Subcontractors“):
(a) the Cloud Provider; and
(b) R3; or
25.2.3 subcontracting for Third Party services or products that (“Non-Material Subcontracting“):
(a) are not fully dedicated to the Member;
(b) do not form a material part of the Services; and
(c) do not involve employees of such Third Party having access to the Member’s Confidential Information or the Member Data.
25.3 If Contour decides to change any of the Pre-Approved Subcontractors, Contour shall provide the Member with reasonable advance notice (at least three (3) months’ advance notice, except in an emergency event in which case Contour shall provide as much advance notice as may be reasonably practicable in the circumstances). If the Member has genuine concerns with the identity of the proposed replacement Pre-Approved Subcontractor, it may discuss the same with Contour and if Contour decides to continue to appoint that replacement Pre-Approved Subcontractor despite the Member’s concerns, the Member may terminate this Agreement (but shall not be entitled to any refund of any Fees of whatever nature already paid under this Agreement).
25.4 If Contour subcontracts any of its obligations under this Agreement, then:
25.4.1 Contour will remain liable to the Member for the acts and omissions of any Subcontractor as if they were the acts or omissions of Contour;
25.4.2 such subcontracting will not relieve Contour of its obligation to perform the Services under this Agreement;
25.4.3 Contour will remain the single point of contact for the Member with respect to the Subcontractors; and
25.4.4 Contour will enter into a written contract with the Subcontractors (except Contour’s Affiliates and in respect of the Non-Material Subcontracting) that will impose relevant obligations on such Subcontractors in relation to the subcontracted Services and will enforce such obligations against such Subcontractors.
26. General Provisions
Any approvals, consents, agreement, or the like given pursuant to this Agreement by the Member (“Approvals“) must be given by a duly authorised representative of the Member, and Contour shall not be liable for any losses arising from a failure to act on any Approvals not given by a duly authorised representative of the Member. Any change to the identity of the duly authorised representative of the Member shall be notified by the Member to Contour in writing.
26.2 Force Majeure.
26.2.1 Neither Party will be liable for any delay or failure in the performance of any of its obligations pursuant to this Agreement to the extent that the same results from a Force Majeure Event and the Party affected by the Force Majeure Event:
(a) could not have prevented the delay or failure by using reasonable precautions;
(b) as soon as reasonably practicable following becoming aware gives notice of the occurrence of the Force Majeure Event to the other Party in writing within twenty-four (24) hours; and
(c) uses Commercially Reasonable Efforts to commence performing such obligations as soon as possible or otherwise mitigate the effects of the Force Majeure Event by finding a work around to perform the obligation despite the Force Majeure Event.
26.2.2 Where the provision of the Services or part thereof is prevented or affected by an event described in this Clause 26.2 of this Part A, the Member’s obligation to pay the Fees shall be reduced commensurate with the portion of the aforementioned items that are not performed or part performed until Contour resumes full performance of that part of the aforementioned items in accordance with the terms of this Agreement.
26.3 Notices and communications.
26.3.1 Any communication to be given in connection with this Agreement shall be in writing (electronic form being sufficient) and:
(a) if such communication is a Formal Notice, shall either be delivered by hand or courier to a Party’s registered office (or such other address as it may notify to the other Party for such purpose) as follows:
The address published on the website of Contour or as otherwise communicated to the Member from time to time;
As set out in an Order Form;
to an Affiliate:
As set out in an Order Form; and
(b) if such communication is not a Formal Notice, shall be sent by way of email as follows:
As set out in an Order Form;
to an Affiliate:
As set out in an Order Form.
26.3.2 A communication sent according to Clause 26.3.1(a) of this Part A shall be deemed to have been received:
(a) if delivered by hand, on written acknowledgment or receipt by an officer or an employee of the receiving party; or
(b) if delivered by courier, on production of evidence from the relevant courier that the notice was successfully delivered.
26.3.3 A communication sent according to Clause 26.3.1(b) of this Part A shall be deemed to have been received when successfully sent.
26.3.4 If, under the preceding provisions of this Clause 26.3 of this Part A, a communication would otherwise be deemed to have been received outside normal business hours in the place of receipt, being 9:00 a.m. to 4:00 p.m. on a Business Day, it shall be deemed to have been received at 9:00 a.m. on the next Business Day.
26.3.5 The Member may notify Contour of a change to its name, relevant person or address for the purposes of this Clause 26.3 of this Part A by way of a Formal Notice.
26.4 Further assurance.
Each Party shall do all things necessary, including executing all documents necessary, to give effect to the intention of the Parties in relation to this Agreement.
26.5 Relationship of the Parties. Nothing in this Agreement is intended to create an agency, partnership, joint venture, or franchise between the Parties and neither Party has the authority to act in the name or on behalf of or otherwise to bind the other or to make representations on behalf of the other Party or its products or services. In performing its obligations under this Agreement, each Party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and control of its own employees and for the payment of their salaries and benefits and related compensation. The Member shall be fully responsible for its Representatives’ compliance with this Agreement, and any act or omission of any of the Member’s Representatives shall be deemed to be an act or omission of the Member.
26.6.1 The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns.
26.6.2 Neither Party may or shall assign, transfer (by way of novation or otherwise), or create any trust or purport to do the same, in respect of a right or obligation in, this Agreement without the prior written consent of the other Party hereto, provided that either Party (the “Transferring Party“) may assign or transfer (by way of novation or otherwise) all (and not only a part thereof) of the Transferring Party’s right or obligation in this Agreement, upon notice to the other Party but without the consent of the other Party, to:
(a) an Affiliate of the Transferring Party; or
(b) to a Person that acquires all or substantially all of the assets or operations of the Transferring Party or the business of the Transferring Party primarily related to this Agreement,
provided, that such Affiliate or Person acknowledges and assumes in writing all responsibilities of the Transferring Party under this Agreement.
26.7 Entire Agreement.
The Parties have read this Agreement and agree to be bound by its terms, and further agree that this Agreement constitutes the entire agreement of the Parties and supersedes all existing agreements, proposals and all other communications between them relating to the subject matter of this Agreement, oral or written. No oral or written information or advice given by Contour, its agents, officers or employees shall create any warranty or representation or in any way increase the scope of any warranty, and Member may not rely on any such information or advice with respect to Contour. Nothing in this Clause 26.8 of this Part A is intended to exclude or restrict either Party’s liability for fraud or fraudulent misrepresentation.
26.8 Severance. If any provision of this Agreement shall be held to be invalid, illegal, unenforceable, or in conflict with any Applicable Law, the validity, legality or enforceability of the remaining provisions of this Agreement shall in no way be affected or impaired. In the circumstances referred to in this Clause 26.9 of this Part A, the Parties shall use Commercially Reasonable Efforts to negotiate in good faith to substitute any invalid, illegal or unenforceable provision with a valid, legal or enforceable provision which achieves to the greatest extent enforceable the original intent (and commercial position) of the Parties as would have been achieved by the original provision.
26.9 Waiver. The waiver by either Party hereto of a breach of any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same, or any different, provision. No failure or delay by a Party to exercise any right or remedy provided under this Agreement 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.
26.10 Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.
26.11 Governing Language. This Agreement is drafted in the English language. If this Agreement is translated into another language, the original English language text prevails in all respects (including, without limitation, all questions of interpretation).
26.12 Third Party Rights.
26.12.1 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 term of this Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Contracts (Rights of Third Parties) Act 1999.
26.12.2 The rights of the Parties to rescind or vary this Agreement are not subject to the consent of any other Person.
26.13 Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
EXECUTED BY THE PARTIES ON THE EFFECTIVE DATE
for and on behalf of
Contour Pte. Ltd.
Name: Carl William Wegner
Signed for and on behalf
of the Member as set out in the Order Form.