Terms and Conditions

Product Terms and Conditions

1. DEFINITIONS AND INTERPRETATION
   1. In the Agreement, the following terms shall have the following meanings:
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      Abuse means any use of a Cortex Product that, in Cortex’s reasonable opinion, is offensive, indecent or encourages abusive behaviour, including without limitation, using a Cortex Product: (a) in any way that is fraudulent or has any fraudulent purpose or effect, including spamming any person; (b) to send any unsolicited or unauthorised communications; (c) for the purpose of harming or attempting to harm any person; (d) in a way that breaches any applicable local, national or international law or regulations; (e) to engage in terrorist activity; or (f) for the purpose of knowingly transmitting any data, or sending or uploading any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
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      Affiliate means, in relation to a party, a person who is, from time to time, a subsidiary or holding company of that party, or is a subsidiary of that holding company, where the terms "holding company" and "subsidiary" have the meanings as set out in section 1159 of the Companies Act 2006;
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      Agreement shall mean these Product T&Cs and the applicable Sales Agreement entered into between Cortex and the Customer;
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      Authorised Users means the Customer’s directors, employees, agents, contractors and other workers who are end users of the Cortex Products;
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      Commencement Date means the date on which the Term of the Agreement shall begin with the relevant Customer as set out in the applicable Sales Agreement;
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      Confidential Information  means in relation to each party (and to any Affiliate), any and all (i) business, commercial, economic, financial, operational, technical, administrative, marketing or planning information (including, in the case of Cortex, (a) the design, specification and content of all Cortex Products; (b) the personnel, policies or business strategies of Cortex; and/or (c) the terms upon which the Cortex Products are being supplied and installed pursuant to the Agreement); and/or (ii) other information and/or material which is expressed to be of a confidential nature or which by its nature is secret, confidential or of a proprietary nature or which is not otherwise in the public domain;
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      Contract Year means each period of twelve (12) months commencing on the Commencement Date and any anniversary of the Commencement Date;
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      Cortex Products means any or all of Cortex’s Content Management System, Digital Asset Manager, Live Blog, Asset Allocator System, Fan Data Platform, Digital User Tracking, Push Notifications, Promo Assets, Single Sign On, Polls, Fandom Engine and/or Campaigns Manager, as specified in the applicable Sales Agreement, including any modifications, updates or additions made to such products by or on behalf of Cortex;
      
      Customer means the customer entity entering into the Agreement with Cortex, as detailed in the applicable Sales Agreement (also referred to as you, your, etc.);
      
      Customer Materials means all audio-visual material, data, content, documents, trade marks and other materials in any form (whether owned by you or a third party), which are provided by or on behalf of you to Cortex in connection with the Cortex Products or which are otherwise uploaded or incorporated by you or on your behalf into the Cortex Products;
      
      Data Protection Laws means all applicable privacy and data protection laws including the UK GDPR (as defined in the Data Protection Act 2018) , the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as amended) and all subordinate and ancillary legislation, directions of any competent privacy regulator, common law and other relevant court decisions and all relevant codes of practice that relate to privacy and/or data protection (whether in whole or part) in each case as may be amended, supplemented or replaced from time to time;
      
      Documentation means, in respect of each Cortex Product, all operator and user manuals, training materials, guides, specifications and other materials created or owned by Cortex and provided to you for use of the applicable Cortex Product;
      
      Excessive Use means use of the Cortex Product (including any related customer support services) that is not reasonable and significantly exceeds normal usage patterns, including without limitation use: (a) in a manner that consumes excessive bandwith; (b) which affects Cortex’s core equipment; (c) which affects the overall performance of the Cortex Products; (d) which may compromise Cortex’s ability to continue to provide the Cortex Products to you and/or other customers; (e) which directly or indirectly causes a disruption in the network integrity of our network; and/or (f) which significantly affects Cortex’s personnel resourcing in respect of the provision of customer support services;
      
      Fees means the charges to be paid by the Customer to Cortex in consideration for the applicable Cortex Products as agreed in the applicable Sales Agreement;
      
      Initial Term means the initial term set out in the applicable Sales Agreement;
      
      Intellectual Property Rights means any current and future intellectual property rights, including: (a) copyrights, trademarks, trade names, domain names, rights in logos and get-up, inventions, confidential information, trade secrets and know-how including commercial know-how, design rights, patents, utility models, semi-conductor topographies, all rights of whatsoever nature in computer software and data, rights in databases, privacy rights; (b) all intangible rights and privileges of a nature similar, analogous or allied to any of rights listed in (a); and (c) in every case in any part of the world and whether or not registered, including in relation to any of rights listed in (a) and (b): (i) all granted registrations and all applications for registration; (ii) all renewals, reversions or extensions; (iii) the right to sue for damages for past infringement; and (iv) all forms of protection of a similar nature which may subsist anywhere in the world;
      
      Insolvency Event occurs when a party: (a) ceases, or threatens to cease, to carry on the whole or a substantial part of its business; (b) becomes unable to pay its debts as and when they fall due, makes an arrangement or composition with its creditors or goes into liquidation; (c) is the subject of the commencement of any insolvency proceedings, the passing of a resolution for its winding up, the giving of a notice of appointment or intention to appoint an administrator or liquidator (which is not dismissed, withdrawn or set aside within 14 days after presentation); (d) has an administrator, an administrative receiver or trustee appointed over all or any of its assets; or (e) where you are an individual, you are the subject of a bankruptcy petition, application or order;
      
      Outputs means the materials and content that are generated by the Customer’s use of the Cortex Products;
      
      Product T&Cs means these terms and conditions;
      
      Product Updates has the meaning given in clause 5.1;
      
      Renewal Period has the meaning given in clause 9.1;
      
      Sales Agreement means the purchase order form agreed between Cortex and you for the provision of the applicable Cortex Products;
      
      Service Levels means the service levels for the relevant Cortex Product as set out in the Sales Agreement, if applicable;
      
      Shared Personal Data means any personal data that the Customer inputs into the Cortex Products; and
      
      Term means the Initial Term and any Renewal Periods, as applicable.
   2. The parties agree that:
      1. clause headings used in these Product T&Cs are inserted for ease of reference only and shall not affect construction;
      2. references to the word include or including (or any similar term) are not to be construed as implying any limitation; and
      3. references to statutory provisions or enactments shall include references to any amendment, modification, extension, consolidation, replacement or re-enactment of any such provision or enactment.
   3. If there is any conflict in the provisions between the Sales Agreement and these Product T&Cs, the provisions of the applicable Sales Agreement shall take precedence.
2. LICENCE AND RESTRICTIONS
   1. In consideration for the Customer’s compliance with the Agreement and payment of the Fees, Customer may:
      1. access (and permit its Authorised Users to access) the Cortex Products and the Documentation; and
      2. view, use and display, and permit your Authorised Users to view, use and display, the Cortex Products in accordance with the terms and restrictions set out in the Agreement.
   2. You agree that you will:
      1. comply with the Documentation and other reasonable instructions of Cortex;
      2. not rent, lease, sub-license, loan, provide, or otherwise make available, the Cortex Products in any form, in whole or in part to any person without prior written consent from us;
      3. not copy the Cortex Products or Documentation, except as part of the normal use of the Cortex Products or where it is necessary for the purpose of back-up or operational security;
      4. not translate, merge, adapt, vary, alter or modify, the whole or any part of the Cortex Products or Documentation nor permit the Cortex Products or any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use the Cortex Products on devices as permitted in these Product T&Cs;
      5. not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Cortex Products nor attempt to do any such things;
      6. comply with all applicable technology control and export laws and regulations that apply to the technology used or supported by the Cortex Products; and
      7. not compromise the security or carry out any penetration testing of the Cortex Products without our prior written consent.
   3. Where you provide or make available any aspect of the Cortex Products or any Output to a third party, you: (a) shall only be entitled to do so where expressly permitted under these Product T&Cs; (b) do so at your own risk and are solely responsible for all arrangements with that third party and for any use of the Cortex Products or the Outputs by that third party; and (c) shall indemnify and hold Cortex harmless against any losses, liabilities, damages, costs or expenses arising from or in connection with any claim made by that third party against Cortex in connection with these Product T&Cs.
   4. You are liable for all acts and omissions of your Authorised Users.
   5. The use of the Cortex Products may be dependent on certain:
      1. third party infrastructure which we do not control. As such, we do not warrant that the use of the Cortex Products will be uninterrupted or error-free; and/or
      2. software we have obtained from third party software providers (“Third Party Software”). To the extent any such Third Party Software requires us to impose any additional terms on you, we shall notify you in writing. Further, the warranties given by Cortex under this Agreement are only applicable to the Third Party Software to the extent that we receive the same or a materially similar warranties from the relevant third party provider of the Third Party Software on a contractually assignable basis. If we receive the same or a materially similar warranty from the relevant provider of the Third Party Software but not on a contractually assignable basis, we shall enforce the warranty against the relevant provider and pass on the benefit of that warranty to the Customer.
   6. We shall not be responsible for the integration of the Cortex Products into the Customer’s infrastructure beyond providing reasonable and commercially viable support provided across Cortex’s customer base.
   7. If applicable, we shall provide the Cortex Products in accordance with the Service Levels.
   8. We shall provide reasonable customer support services in respect of the Cortex Products in accordance with relevant Documentation.
   9. If you submit any due diligence security requests to us during the Term, we will use commercially reasonable efforts to respond to such requests, provided that:
      1. you shall only be entitled to make one (1) such request to us in any twelve (12)-month period during the Term; and
      2. the scope of such request must be proportionate to the Fees payable under the Agreement and reasonable, and if, in our reasonable opinion, the scope of any such request is disproportionate to the Fees payable or unreasonable, we shall only be obliged to respond to such request if you pay our additional charges in relation to the same.
3. YOUR OTHER OBLIGATIONS
   1. You shall:
      1. comply with all applicable laws with respect to your obligations under these Product T&Cs;
      2. promptly provide to Cortex all information, content, Customer Materials, assistance and co-operation reasonably requested by Cortex from time to time in order to facilitate the proper and timely provision of the Cortex Products (including, as applicable, data feeds and branding material);
      3. obtain and shall maintain all necessary licences, clearances, consents, approvals and permissions necessary for: (i) you and, where applicable, your Authorised Users to receive the Cortex Products and perform your obligations under these Product T&Cs; and (ii) the use by Cortex of Customer Materials and the Outputs in the performance of our obligations and exercise of our rights under these Product T&Cs;
      4. be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to the Cortex Products, and Cortex shall not be liable for any problems, conditions, delays, delivery failures or any other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
      5. at all times act in good faith towards Cortex and not make any defamatory or derogatory statements about, or take part in any activities in any manner which might be considered to be derogatory or detrimental to the reputation of Cortex or the Cortex Products;
      6. use the Cortex Products subject to the storage and usage limits set out in the applicable Sales Agreement; and
      7. at all times maintain the security and confidentiality of your Authorised Users’ log-in details, passwords and/or access credentials to the Cortex Products and ensure that they are not shared with any third parties. If you suspect or become aware that the security or confidentiality of any log-in details, passwords and/or access credentials has been compromised in any way, you must promptly notify us. Cortex does not accept any liability for any third party access to the Cortex Products where your Authorised Users’ log-in details, passwords and/or access credentials have been accessed by a third party.
   2. You agree that your use of the Cortex Products will be reasonable and shall not constitute Excessive Use. Cortex reserves the right to take action against you if we become aware that you are engaging in Excessive Use. We will determine based on reasonable information available, what constitutes Excessive Use, and you agree that our determination is final and binding. If we reasonably believe that you have been engaging in Excessive Use, we may:
      1. work with you to reduce your usage. If you are unable or unwilling to abide by our suggested reduction in your usage within 30 days of notice, we may invoice you additional fees to accommodate the over usage. Such invoice shall be payable within 30 days following receipt by the Customer;
      2. contact you and require that you cease or alter your behaviour / actions which have resulted in Excessive Use immediately; and/or
      3. immediately suspend, modify, restrict, block access to or limit your use of the Cortex Products, and notify you in writing that we have done so.
   3. You are solely responsible for ensuring that Customer Materials are provided to Cortex with the necessary consistency, accuracy and latency in the manner agreed by the parties. You agree that the provision of the Outputs is dependent and conditional upon the accuracy and timeliness of the provision to Cortex of Customer Materials. Cortex excludes all liability for:
      1. any errors or omissions in Customer Materials; and
      2. any errors or omissions in the Outputs and/or failure to meet the Service Levels resulting from a failure or delay in providing Customer Materials or any error or omission in Customer Materials.
   4. You agree that you will not, and shall ensure that your Authorised Users do not, use the Cortex Products in a manner that constitutes Abuse. Cortex reserves the right to take action against you if we become aware that you are engaging in Abuse. We will determine based on reasonable information available, what constitutes Abuse, and you agree that our determination is final and binding. If we reasonably believe that you have been engaging in Abuse, we may:
      1. contact you and require that you cease or alter your behaviour / actions which have resulted in Abuse immediately; and/or
      2. immediately suspend, modify, restrict, block access to or limit your use of the Cortex Products, and notify you in writing that we have done so.
4. INTELLECTUAL PROPERTY RIGHTS
   1. Cortex owns and shall retain ownership of all Intellectual Property Rights in and to the Cortex Products and the Documentation and any and all data and know-how obtained or developed in connection with the provision of the Cortex Products and the Documentation (excluding Customer Materials), including any feedback/comments provided by you or on your behalf in relation to the Cortex Products and the Documentation. You hereby acknowledge that you do not, other than as expressly stated in these Product T&Cs, obtain or claim any right, title or interest in or to (including any right to use) the Cortex Products or such data, know-how or feedback/comments.
   2. As between the parties, you own and shall retain ownership of all Intellectual Property Rights in and to Customer Materials and the Outputs and you hereby grant to Cortex a worldwide, royalty-free, fully paid-up, non-exclusive licence to copy, reproduce, adapt, edit and otherwise use Customer Materials and the Outputs to the extent reasonably required for the provision and development of the Cortex Products (including to white-label the Cortex Products) and related support services. Cortex hereby acknowledges that it does not, other than as expressly stated in these Product T&Cs, obtain or claim any right, title or interest in or to (including any right to use) Customer Materials or the Outputs.
   3. You warrant that Customer Materials and the Outputs (and their use by Cortex in accordance with these Product T&Cs) do not and will not infringe the rights (including Intellectual Property Rights) of any third party.
5. CHANGES TO THE CORTEX PRODUCTS
   1. From time to time, we may automatically update the Cortex Products to improve performance, enhance functionality, reflect changes to the operating system or address security issues or other business needs (“Product Updates”).
   2. If you choose not to install such Product Updates or if you opt out of automatic Product Updates you may not be able to continue using the Cortex Products but will remain liable for all Fees.
6. CONFIDENTIALITY AND PUBLICITY
   1. No party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
   2. A party shall not, without the prior written consent of the other party, disclose the other party's Confidential Information to a third party except as permitted by this clause 6.
   3. Each party may disclose the other party's Confidential Information:
      1. to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 6; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that it shall, as far as it is lawful to do so, first consult the other party to give the other party an opportunity to contest the disclosure, take into account the other party’s reasonable requirements about the proposed form, timing, nature and extent of the disclosure and ensure that any disclosure is limited to the absolute minimum required to comply with the relevant disclosure requirement.
   4. Each party shall take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of the Agreement, do not make public or disclose the other party’s Confidential Information.
   5. The Customer acknowledges and agrees that Cortex may publicise and refer to the relationship between the parties in its promotional and/or marketing materials as set out in the Sales Agreement.
7. DATA PROTECTION
   1. For the purposes of this clause 7, the terms controller, data subject, personal data, personal data breach, processor and processing, and supervisory authority shall have the meaning given to them in Data Protection Laws.
   2. Both parties will comply with all applicable requirements of Data Protection Laws. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under Data Protection Laws.
   3. The parties have determined that, in respect of the Shared Personal Data, the Customer is a controller and Cortex is a processor. Cortex shall process the Shared Personal Data for the purposes of providing the Cortex Products and related services in accordance with the Agreement (including as detailed in Appendix 1) and the Documentation during the Term.
   4. Without prejudice to the generality of clause 7.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Cortex and lawful collection of the same by Cortex for the duration and purposes of the Agreement.
   5. Without prejudice to clause 7.2, Cortex shall, in relation to the Shared Personal Data:
      1. process that personal data only on the documented instructions of the Customer (including as set out in the Agreement), unless Cortex is required by applicable laws to otherwise process that Shared Personal Data in which case Cortex shall notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit Cortex from so notifying the Customer;
      2. implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of the personal data and against its accidental loss, damage or destruction. The Customer has reviewed these measures and has accepted that they are appropriate taking account of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the personal data transmitted, stored or otherwise processed;
      3. ensure that that all personnel engaged or authorised by Cortex who have access to and/or process personal data are obliged to keep the personal data confidential;
      4. assist the Customer as far as is reasonable (and at the Customer’s cost) in responding to any request from a data subject and in ensuring compliance with the Customer’s obligations under Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the supervisory authorities or other regulators and, in particular, Cortex shall promptly notify the Customer if it receives any complaint, notice or communication (whether from any data subject, supervisory authority or other third party) which relates to processing of Shared Personal Data;
      5. notify the Customer without undue delay after becoming aware of a personal data breach and shall, at the Customer’s cost, provide reasonable information on such breach and any investigations in relation to it;
      6. at the written direction of the Customer, delete or return to the Customer all Shared Personal Data on termination of the Agreement unless Cortex is required by law to continue to process that Shared Personal Data, in which case Cortex shall notify the Customer of the same. For the purposes of this clause 7.5.6 the obligation to "delete" data includes the obligation to delete data from back-up systems as well as live systems; and
      7. maintain adequate records, and, on the Customer's request and at the Customer’s cost, make available such information as the Customer may reasonably request to demonstrate its compliance with Data Protection Laws and this clause 7.
   6. The Customer provides its prior, general authorisation for Cortex to:
      1. appoint any other processor or transfer any personal data to the same provided that Cortex shall:
         1. ensure that the terms on which it appoints such processors comply with Data Protection Laws, and are consistent with the obligations imposed on Cortex in this clause 7; and
         2. inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to Cortex’s reasonable satisfaction, that the objection is due to an actual or likely breach of Data Protection Law, the Customer shall indemnify Cortex for any losses, damages, costs (including legal fees) and expenses suffered by Cortex in accommodating the objection;
      2. carry out, via itself or via any other processor, any processing of personal data, or transfer any personal data, outside of the UK, provided that Cortex shall ensure that all such transfers are effected in accordance with Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Cortex, including any request to enter into standard data protection clauses required to comply with Data Protection Law; and
      3. collect and analyse any data derived from the Customer Materials (which, for the avoidance of doubt, does not include any Shared Personal Data) and process the same in an aggregated an anonymised form during or after the Term for the purposes of:
         1. analysing the Customer’s use of the Cortex Products;
         2. improving, enhancing, researching and developing the performance of the Cortex Products; and
         3. sharing the results of any analysis or research with our partners or Affiliates.
8. PAYMENT OF FEES
   1. You shall pay Cortex all applicable Fees in accordance with the Payment Schedule set out in the Sales Agreement.
   2. If your use of the Cortex Products exceeds the storage and usage limits for the relevant tier or volume banding within each tier as set out in the Sales Agreement, Cortex shall have the right to immediately increase the Fees paid by the Customer by an amount that will be pro-rated against the remaining period of the Term and which is relevant to the higher tier (e.g. from Lite to Pro or Enterprise, or from Pro to Enterprise) or volume banding within each tier in respect of storage and usage. Such pro-rated increase to the Fees shall be invoiced by Cortex to the Customer and be payable within 30 days following receipt by the Customer. We will review your storage and usage levels, at minimum, each month and we may, at our absolute discretion, move you to a lower tier or volume banding, as appropriate.
   3. If you fail to pay any portion of the Fees by the applicable due date set out in the Payment Schedule, Cortex may (without prejudice to any other rights and remedies available to it):
      1. suspend provision of the Cortex Products until the relevant Fees are paid; and/or
      2. charge interest on the unpaid amount (after as well as before any judgment) from the due date until payment is received (both dates inclusive) at the rate of 4% above the base rate of Barclays Bank plc from time to time, such interest to be calculated on a daily basis and payable on demand.
   4. All amounts payable by you pursuant to the Agreement shall be made without any deduction, withholding, counter-claim or set off.
   5. Any Fees payable under the Agreement are stated exclusive of VAT (and/or any other applicable sales taxes), which shall be payable (if applicable) in addition to the amount stated.
   6. Cortex may increase the Fees payable:
      1. at any time where fees payable by Cortex to third parties who provide infrastructure in relation to the Cortex Products are increased, with such increase to the Fees to be proportionate to the increase in the relevant third party’s fees; and/or
      2. with effect from the first anniversary of the Initial Term and each anniversary thereafter during the Initial Term in accordance with the percentage increase in the Consumer Prices Index in the preceding twelve (12)-month period. If the parties wish to renew the Initial Term in accordance with clause 9.1, then with effect from the start of each Renewal Period, Cortex may increase the Fees payable in accordance with its most recent list pricing for such relevant Cortex Product(s). Cortex shall notify the Customer of any such increase to the Fees at least 120 days prior to the end of the Initial Term or the then-current Renewal Period.
9. TERM AND TERMINATION
   1. The Agreement will commence on the Commencement Date and continue for the Initial Term as set out in the Sales Agreement, unless otherwise terminated in accordance with the Agreement. The Agreement shall then automatically renew immediately following the expiration of the Initial Term for successive periods of 12 months (each a “Renewal Period”) unless Cortex or the Customer provides written notice to the other party at least ninety (90) days’ prior to the expiry of the Initial Term or the then-current Renewal Period to indicate that it wishes to terminate the Agreement and such notice shall take effect at the end of the Initial Term or the then-current Renewal Period.
   2. Without limiting the generality of any other clause in the Agreement, either party may terminate the Agreement and the Customer’s use of the Cortex Products with immediate effect by giving notice in writing to the other party if that other party:
      1. is in material breach of the Agreement and such breach is either irremediable or, if it is remediable, is not remedied within fourteen (14) days of notification by the other party; or
      2. suffers an Insolvency Event.
   3. We may also terminate your use of one or more of the Cortex Products at any time without cause with immediate effect by sending you written notice, in the event that:
      1. we are withdrawing the relevant Cortex Product(s) entirely; and/or
      2. we need to materially change the structure of the Fees in respect of the relevant Cortex Product(s), unless you agree to such change in Fees within seven (7) days of our notice.
         
         If we exercise either of these rights, we will refund you any prepaid Fees in respect of the relevant Cortex Product(s) after the effective date of termination. If any notice we send pursuant to this clause 9.3 relates to: (i) all Cortex Products under the Sales Agreement, the Agreement shall terminate at the same time as your usage of those Cortex Products is terminated; or (ii) only some of the Cortex Products under the Sales Agreement, the Agreement will continue in force unaffected in respect of any other Cortex Products.
   4. Upon expiry or termination of the Agreement for any reason:
      1. the Customer shall:
         1. immediately cease to be entitled to use the Cortex Products;
         2. immediately destroy all copies of the Cortex Products which it has and confirm to Cortex that it has done this, unless Cortex wishes to repossess any copies of such Cortex Products; and
         3. immediately pay all outstanding, unpaid Fees due to Cortex and Cortex may submit an invoice for Fees in respect of the period up to the effective date of termination and Customer shall pay such invoices within 30 days of receipt; and
      2. Cortex shall:
         1. immediately delete or destroy all Customer Materials and Outputs held by Cortex; and
         2. delete or destroy all Shared Personal Data immediately following 30 days post termination or expiry of the Agreement. Within that 30-day period, Customer may request the return of such Shared Personal Data and Cortex will provide the same in a common readable format.
   5. Termination or expiry of the Agreement shall not affect any of the 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 terms of the Agreement, which existed at or before the date of termination or expiry.
10. LIMITATION OF LIABILITY
    1. You hereby acknowledge that complex software is never wholly free from defects, errors and bugs and relies on the availability of third party services. Among other things, the operation and availability of the systems used for accessing the Cortex Products, including public telephone services, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Cortex Products. Subject to the express provisions of the Agreement, all Cortex Products are provided on an “as is” basis and Cortex gives no warranty that the Cortex Products will be uninterrupted or wholly free from defects, errors and bugs or that the information obtained by you will meet any particular requirements.
    2. The Cortex Products have not been developed to meet your individual requirements. Please check that the facilities and functions of the Cortex Products (as described in the Sales Agreement and in the Documentation) meet your requirements.
    3. Nothing in the Agreement shall excludes or limits either party’s liability where it would be unlawful to do so, for death or personal injury resulting from negligence of a party or its employees, agents or subcontractors and for any fraud or fraudulent misrepresentation.
    4. To the fullest extent permitted by law, Cortex excludes all implied conditions, warranties, representations or other terms that may apply to the Agreement, the Cortex Products and the Customer’s use of the Cortex Products, whether by statute, common law or otherwise, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
    5. Subject to clause 10.3, Cortex shall not be liable to the Customer under the Agreement for any:
       1. loss of contracts, profits, sales, business or revenue;
       2. loss or corruption of data;
       3. business interruption;
       4. loss of anticipated savings;
       5. loss of business opportunity, goodwill or reputation; or
       6. any indirect or consequential loss or damage.
    6. Subject to clause 10.3, Cortex’s liability to you whether in contract, tort (including negligence) or otherwise arising out of or in connection with the Cortex Products  or the Agreement shall not exceed the a sum equal to the Fees paid by you to Cortex under the Agreement in the 12 months prior to the date that such liability arises.
    7. The Customer shall at all times indemnify and hold harmless Cortex and its officers, employees and agents ("those indemnified") from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
       1. a breach by you of your obligations under the Agreement;
       2. any wilful, unlawful or negligent act or omission by you;
       3. any breach of clause 4.3; and/or
       4. any claim by a third party that the Customer Materials or Outputs infringe their rights, including Intellectual Property Rights.
    8. In addition to any other remedies available to Cortex under the Agreement or otherwise, any unauthorised use, alteration, reproduction, publication, disclosure or transfer of the Cortex Products will entitle Cortex to seek any available equitable remedy against you.
    9. Nothing in the Agreement shall prevent or limit Cortex from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
11. DEFAULT BY CUSTOMER
    1. Cortex shall not be liable for any losses suffered by the Customer if Cortex's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer and, without prejudice to any other right or remedy it may have, Cortex shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer and the Customer shall promptly reimburse Cortex for any costs incurred as a result of the delay.
    2. In the event of such an act or omission by the Customer, Cortex shall notify the Customer in writing and provide reasonable detail of the Customer's failure and its effect or anticipated effect on the Cortex Products.
12. FORCE MAJEURE
    1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to the Agreement if such delay is due to a Force Majeure Event. “Force Majeure Event” means a circumstance beyond the reasonable control of a party which results in that party being unable to observe or perform on time an obligation under the Agreement, but expressly excludes any payment obligation. Such circumstances shall include but shall not be limited to:
       1. acts of God, flood, drought, earthquake or other natural disaster;
       2. epidemic or pandemic (including COVID-19, notwithstanding that the same was known prior to entry into of the Agreement);
       3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
       4. nuclear, chemical or biological contamination or sonic boom;
       5. any period of royal bereavement;
       6. any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition;
       7. collapse of buildings, fire, explosion or accident;
       8. interruption or failure of utility service; and/or
       9. any labour or trade dispute, strikes, industrial action or lockouts.
    2. In such circumstances, the affected party shall promptly notify the unaffected party, and shall: (a) use commercially reasonable endeavours to overcome the Force Majeure Event; and (b) fulfil the relevant obligations upon cessation of the Force Majeure Event. If a party is prevented or materially hindered from satisfying a deadline as a result of a Force Majeure Event, such deadline shall be extended by the duration of the Force Majeure Event.
13. NOTICES
    1. Notices under the Agreement may be delivered by hand, by mail, or by email to either party at such addresses as set out in the Sales Agreement and, in respect of Cortex, with a copy to the Cortex Managing Director and Director of Operations (as notified from time to time).
    2. Notice will be deemed given:
       1. in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;
       2. in the case of posting, three days after despatch; or
       3. in the case of email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
14. ENTIRE AGREEMENT
    1. The Agreement constitutes the entire agreement between the parties and supersede all prior representations, terms, statements and undertakings, whether verbal or in writing.
    2. Each party acknowledges that it has not entered into the Agreement in reliance on any statement or representation of the other party, except to the extent that such statement or representation has been incorporated in the Agreement.
15. CHANGES TO THE AGREEMENT
    1. Other than in the case of Substantial Changes (as defined below), Cortex may modify this Agreement from time to time by notifying the Customer of any changes. By continuing to use or receive the Cortex Products after Cortex notifies the Customer of any such changes, the Customer accepts the Agreement as modified. If Cortex reasonably determines that any proposed changes to the Agreement would result in Cortex performing its obligations in a way that was substantially different to what the Customer might reasonably expect (“Substantial Changes”), Cortex will request the Customer’s written approval to the Substantial Changes (such approval not to be unreasonably withheld or delayed). If the Customer does not approve the Substantial Changes within 30 days after receiving notice from Cortex, Cortex may (at its discretion) either: (i) terminate the Agreement (or the relevant Sales Agreements) on 30 days written notice to the Customer; or (ii) permit the Customer to continue to operate under the previous version of the Agreement.
    2. We may need to change the Agreement to reflect changes in law or best practice, to deal with additional features which we introduce, or other business changes. We will give you at least 30 days’ notice of any change.
    3. If you do not accept the notified changes you will not be permitted to continue to use the Cortex Products.
16. NO PARTNERSHIP OR AGENCY
    1. The Agreement shall not operate so as to create a partnership or joint venture of any kind between the parties. Nothing contained in the Agreement shall be so construed as to constitute either party to be the agent of the other. Neither party shall have any authority to make any commitments on the other party’s behalf.
17. ASSIGNMENT
    1. The Agreement may not be assigned by either party without the other party’s prior written consent.
    2. Notwithstanding clause 17.1, Cortex may subcontract any of its obligations under the Agreement provided that Cortex shall remain liable to you for any acts or omissions of its subcontractors.
18. WAIVER
    1. No right under the Agreement shall be deemed to be waived, except by notice in writing signed by each party.
    2. A waiver made by either party pursuant to clause 18.1 will not prejudice its rights in respect of any subsequent breach of the Agreement by the other party.
    3. Subject to clause 18.1, any failure by either party to enforce any clause of the Agreement, or any forbearance, delay or indulgence granted by the other party to such party, will not be construed as a waiver of the other party’s rights under the Agreement.
19. SURVIVAL OF TERMS
    1. Subject to any provision to the contrary, the Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.
    2. The covenants, conditions and provisions of the Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.
20. SEVERABILITY
    ‍If any provision of the Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall be deemed deleted
21. RIGHTS OF THIRD PARTIES
    The parties agree that a person who is not a party to the Agreement has no right under The Contracts (Rights of Third Parties) Act 1999 (“Third Parties Act”) to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from the Third Parties Act.
22. GOVERNING LAW AND JURISDICTION
    1. The Agreement will be governed by and construed according to the laws of England.
    2. The courts of England and Wales shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Agreement.

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Appendix 1 - Details Of Personal Data Processing

The details set out in this Appendix 1 shall be subject to further details and/or amendments, as necessary, in the applicable Sales Agreement between Cortex and the Customer.