Bunker Terms & Conditions
31 October 2022
GENERAL TERMS AND CONDITIONS
Unless otherwise defined or the context otherwise requires, capitalised terms used in the Agreement shall have the following meaning:
Affiliate means any Person or legal entity which, whether through ownership or oth- erwise, Controls, is Controlled by, is under common Control with, or which is managed by a Party (or, if the context so requires, a Person in question).
Agreement means an Order, these T&Cs, the applicable Service Description(s), the data processing agreement, the standard contractual clauses, and any applicable Product Terms.
Charges means the charges for the Ser- vices and Solutions set forth in the Order. Clause means any clauses in the Agree- ment.
Commencement Date means the date when Supplier makes the Solution(s) and the Services available to Customer as set out in the Order.
Confidential Information has the mean- ing ascribed to it in Clause 22.
Control with respect to any Person (the "Relevant Person"), the power or ability (di- rectly or indirectly) to direct the affairs of that Relevant Person (whether by means of ownership, contract or otherwise), and Controlled and Controlling will be con- strued accordingly, provided that in any event, any person that (i) owns directly or indirectly securities having more than 50% of the voting power for the election or re- moval of directors (or other equivalent gov- erning body) of that Relevant Person or that (ii) holds beneficially more than 50% of the ownership interests of that Relevant Person shall, in either such case, be deemed to Control that Relevant Person.
Customer has the meaning ascribed in the Order .
Customer Data means all data which Cus- tomer has provided to Supplier, including provided for the use by, in, or in relation to the Solutions or the Services, in each case regardless of whether provided or gener- ated before or after the conclusion of the Agreement. For the avoidance of doubt, to the same extent, such Customer Data shall also include any Customer Intellectual Prop- erty Rights incorporated or embedded therein.
Data Protection Laws means (a) relevant United States privacy laws, including the California Consumer Privacy Act; and (b) the EU General Data Protection Regulation (2016/679).
Effective Date has the meaning ascribed in the Clause 17.1.
Good Industry Practice means the exer- cise of the degree of skill, diligence, pru- dence, efficiency, foresight and timeliness which would be expected from a proper qualified and competent person or organi- zation within the relevant industry or busi- ness sector.
Intellectual Property Rights means (i) industrial and intellectual property rights throughout the world, including all copy- rights, mask works, moral rights, rights af- fording protection similar to copyright, rights in databases, letters patents, patent rights, utility models, and rights in inven- tions, semi-conductor topography rights, trade marks, trade dress, rights in internet domain names and website addresses and other rights in trade names, registered de- signs, design rights, know-how, trade se- crets and other rights in confidential infor- mation, including under marketing legisla- tion, (ii) applications for registration, and the right to apply for registration, for any of the rights listed in item (i) whether or not registered or registerable, including all granted registrations and all applications for registration, in any country or jurisdiction, and (iii) all other rights having equivalent or similar effect in any relevant country or ju- risdiction in the world.
Order means the written order governing Customer's subscription to the Solution(s) and Services.
Parties means Customer and Supplier col- lectively.
Party means either Customer or Supplier. Person means any individual, company, partnership, joint venture, firm, association, trust, governmental or regulatory authority or other body or entity (whether or not hav- ing separate legal personality).
Personal Data any information considered "personal data," "personal information," "personally identifiable information," or any similar terms under applicable Data Protec- tion Laws..
Product Terms means any specific terms related to a specific Solution (and related Services) provided by Supplier to Customer (as updated from time to time by Supplier). Services means Supplier's services set out in the Service Description(s) provided by Supplier under the Agreement, including Customer's right to access and use the So- lutions.
Service Description means Supplier's ser- vice description linked to in the Order. Solution(s) means Supplier's solutions Customer has subscribed to under the Or- der, including any add-on modules to such Solutions which Customer has subscribed to.
Supplier means Clearlynx LLC.
Term means, collectively, the initial term of the Agreement and any subsequent re- newal terms.
T&C means these general terms and condi- tions.
1 SCOPE OF THE AGREEMENT AND ORDERING
1.1 Supplier shall provide Customer with access to the Solutions and deliver the Ser- vices to Customer as set out in the Order and in accordance with the terms and con- ditions of the Agreement.
1.2 The Solutions and Services shall be supplied in accordance with Good Industry Practice.
1.3 To the extent Customer wishes to pur- chase additional services or subscribe to other solutions delivered by Supplier , the Parties shall enter into a new agreement governing such additional purchase.
1.4 Customer's subscription to the Solu- tion(s) and Services shall be governed by the terms and conditions of these T&Cs, un- less deviated from or supplemented in the Order or in the Product Terms.
2 CUSTOMER'S ACCESS AND RIGHTS TO USE THE SOLUTIONS
2.1 Unless stated otherwise in the Order, and in accordance with the terms and con- ditions of the Agreement, Supplier, in con- sideration for the Charges, hereby grants to Customer and its Affiliates a non-exclusive, non-transferrable, non-sublicensable, revo- cable, worldwide right and license to access the Solutions and use the Services during the Term solely for Customer’s and its Affil- iate’s internal business purposes and in ac- cordance with the Agreement and subject to any restrictions and limitations otherwise set out in the Order or Product Terms.
2.2 Customer may freely increase its amount of use of the Solutions and Services in exchange for increased Charges, as set out in the Order.
2.3 Customer, on behalf of itself and its Affiliates, acknowledges and agrees that it and they will not use the Solutions or Ser- vices to form part of a service bureau or outsourcing an offering by Customer or its Affiliates to third parties.
2.4 In order to make use of the Solutions and Services, Customer acknowledges and agrees that it must provide the data pertain- ing to the relevant Solution or Service and comply with the technical requirements for the relevant Solution or Service. The neces- sary data and technical requirements as of the Effective Date are set out in the appli- cable Product Terms. Supplier is not liable for any failure to provide the Solutions or Services which results from Customer's fail- ure to comply with the data and technical requirements.
2.5 Customer and its Affiliates shall not, and Customer represents and warrants that it and its Affiliates will not:
(i) sell, resell, distribute, rent or lease the Solutions or Services or use the Solutions or Services for the benefit of any Person other than Customer and its Affiliates;
(ii) use the Solutions to store or transmit infringing, misappropriating, libellous or otherwise unlawful or tortious material; (iii) use the Solutions or Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws re- garding export of data or software to and from the US or other countries);
(iv) use the Solutions to store or transmit any material in violation of any third-party rights;
(v) interfere with or disrupt the integrity or performance of any Solution, Service or third-party data contained therein;
(vi) takeanyactionsthataffectSupplier’s right, title or interest in the Solutions or Ser- vices;
(vii) give access to the Solutions or Ser- vices to any third party without Supplier’s prior written consent;
(viii) remove, alter or obscure, any propri- etary notices and licenses on the Solutions or Services;
(ix) separate or uncouple any portions of the Solutions or Services, in whole or in part, from any other portions thereof; and (x) modify, create derivative works of, re- verse assemble, reverse engineer, trans- late, disassemble, decompile or otherwise attempt to create or discover any source code, underlying algorithms, ideas, file for- mats, programming interfaces of or other works from, or analyze to determine their composition or physical structure or per- form destructive testing on, the Solutions or Services by any means whatsoever, without the prior written approval of Supplier, save as permitted by applicable law.
2.6 Supplier may suspend Customer's ac- cess to the Solution and Services, with or without notice, at any time if, Supplier in its reasonable opinion believes that Customer or its users have violated any provision in the Agreement, including if Customer has not paid the Charges.
3 DEVELOPMENT, MAINTENANCE AND TECHNICAL SUPPORT
3.1 The Services are described in the Ser- vice Description and Product Terms.
3.2 Regardless of any further develop- ment, Supplier will in all material respects maintain the existing core functionality of the Solutions as of the Effective Date.
3.3 Customer may propose changes to a Solution and/or Services, including develop- ment of new functionality, however, any changes to or development of a Solution or Services shall be at Supplier's sole discre- tion. Unless otherwise agreed in writing, Customer hereby irrevocably assigns free of charge to Supplier all right, title and interest in and to all Intellectual Property Rights and other rights, title and interest in such pro- posed changes to the Solutions and/or Ser- vices.
3.4 The Solutions will automatically be updated by Supplier at no additional charges when new versions, updates, ser- vice packs, releases or hot-fixes are availa- ble, thus Customer will always be upgraded to the latest version of the applicable Solu- tion without prior notice and without con- sent (One Version Policy). Such new ver- sions, updates, etc. will be subject to the terms and conditions of the Agreement and considered an integrated part of the appli- cable Solution. However, see also Clause 3.5.
3.5 Supplier may develop new modules or products, which, at Supplier's sole discre- tion, may be separately marketed and priced, and which are not part of the Solu- tions or Services already purchased by Cus- tomer under the Order .
3.6 Supplier may amend the Product Terms (e.g. in case of changes to a Solution or Service) and such amendments will be- come binding upon Customer upon receiv- ing notice from Supplier. In case of amend- ments to the disadvantage of Customer, Supplier will provide prior written notice to Customer and Customer shall be entitled to terminate the applicable Solution or Service for convenience with immediate effect within 30 days following Customer's receipt of such notice, if no notice of termination by Customer is received (by Supplier) within such 30 days, the amendments shall be- come binding upon Customer.
3.7 Supplier shall as part of the Services maintain and, at Customer’s request, pro- vide to Customer, a back-up of any and all Customer Data and other data in the Solu- tions required for Customer’s continuation of business, including in the event of disas- ter recovery.
4 USE OF SUB-SUPPLIERS
4.1 Supplier may subcontract all or part of the Services without Customer's prior writ- ten consent. Furthermore, Supplier may change a sub-supplier without obtaining Customer's approval.
4.2 The subcontracting will not relieve Supplier of its obligations under the Agree- ment. Supplier shall be responsible for all acts and omissions of its sub-suppliers as if they were Supplier’s own.
4.3 Notwithstanding Clause 4.2, to the ex- tent Supplier uses material sub-suppliers, (e.g. to provide cloud infrastructure ser- vices), the liability caused by use of such material sub-suppliers' shall be subject to the limitations set out in the terms and con- ditions of the material sub-suppliers. Sup- plier shall pass through to Customer any compensation received under warranties and indemnities offered by the material sub-supplier. If more customers have been affected, such compensation shall be dis- tributed between the affected customers. Material sub-suppliers are set out in the Product Terms or the Service Description (as updated from time to time).
deviated from or supplemented in such statement of work.
5.2 As between the Parties, Supplier re- serves all right, title and interest in and to all Intellectual Property Rights and other rights, title and interest in such develop- ments, improvements, design contributions or derivative works thereto and such may, at Supplier's sole discretion, be made gen- erally available in the Solutions (to other customers), at no additional charges or sep- arately marketed and priced.
5.3 Any additional consultancy services to be delivered by Supplier will be performed on a time and material basis and subject to Supplier's applicable hourly rates. Supplier's standard consultancy terms and conditions shall apply to such services.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 As between the Parties, Supplier re- serves all right, title and interest in and to all Intellectual Property Rights and other rights, title and interest in the Solutions and Services, any improvements, design contri- butions or derivative works thereto and all data generated by the use of the Solutions and Services.
6.2 In case third-party software or data is incorporated into the Solutions or Services by Supplier, the third-party’s terms relating to such third-party software or data will ap- ply to such third-party software or data. It is Customer’s responsibility to ensure it complies with such third-party terms. If Supplier's agreement with any third-party software or data provider is terminated (i.e. also third-party providers not listed in the Agreement), Supplier shall endeavor to re- place the third-party provider with a pro- vider of similar third-party data or software. If Supplier cannot replace the third-party provider and such third-party data or soft- ware is material for Customer's use of a So- lution or Service, Customer shall be entitled to terminate such Solution or Service for convenience with immediate effect.
6.3 Customer hereby grants Supplier and Supplier's Affiliates a non-exclusive, perpet- ual, irrevocable, transferrable, subli- censeable, royalty-free, fully-paid, world- wide right and license, as of the Effective Date, to all Customer Data, for each of Sup- plier and its Affiliates to use and otherwise exploit in any manner they see fit; provided, however, Supplier and its Affiliates may only disclose such Customer Data to third par- ties, if such Customer Data is anonymized beforehand. Save as set out in the Agree- ment Customer waives absolutely and irrev- ocably against Supplier and its Affiliates any and all rights, objections or claims, includ- ing any Intellectual Property Rights, relating to Supplier and its Affiliates' use of Cus- tomer Data in accordance with this Clause 6. For the purposes of this Clause, Affiliates of Supplier shall only comprise ZeroNorth A/S and its direct and indirect downstream Affiliates.
6.4 Notwithstanding Clause 6.3, Cus- tomer hereby grants Supplier and Supplier's Affiliates an exclusive, irrevocable, transfer- rable, sublicenseable, royalty-free, fully-
Customer may request changes to a
Solution and/or Services, including develop- ment of new functionality, however, any changes to or development of a Solution or Services shall be at Supplier's sole discre- tion. Such development shall be described and agreed in a separate statement of work entered into between the Parties governing such consultancy services. When such changes to a Solution or Service is released in accordance with the applicable statement of work, the changes will form an integrate part of the applicable Solution or Service and will be governed by the terms and con- ditions of these T&C, unless explicitly
paid, worldwide right and license, as of the Effective Date, to all Customer Data, for Supplier and Supplier's Affiliates to use and otherwise exploit in any manner they see fit within Supplier's and Supplier's Affiliates' field of use during the Term and for a period of three (3) years following the Term pro- vided, however, Supplier and Supplier's Af- filiates may only disclose such Customer Data to third parties, if such Customer Data is anonymized beforehand. For the avoid- ance of doubt, this provision shall not limit Customer's right to subscribe to third-party solutions similar to the Solutions and Ser- vices.
6.5 Notwithstanding Clause 6.3, in case Customer has provided Customer Data not owned by Customer, Customer shall notify Supplier of such ownership issue and pro- cure the rights necessary to grant the li- cense granted in Clause 6.3.
7 COMPLIANCE WITH LAWS
7.1 Supplier shall comply with mandatory regulatory requirements under applicable law generally applicable to Supplier as an IT provider.
7.2 Customer shall be responsible for en- suring compliance with any local or industry specific regulatory requirements and for in- forming Supplier of any such requirements and how to implement them in the Solutions and Services, if required. However, Supplier is not obliged to implement such local or in- dustry specific regulatory requirements in the Solutions or Services.
8.1 Each Party will comply with any (trade) sanction laws applicable and, in par- ticular any law enforced by the US, the United Kingdom, Denmark and/or the EU. 8.2 A Party shall be entitled to terminate the Agreement with immediate effect in the event that the Agreement will place such Party in non-compliance with any (trade) sanction laws applicable and, in particular any laws enforced by the US, the United Kingdom, Denmark and/or the EU.
9 DATA PROTECTION AND SECURITY
9.1 If Supplier shall process Personal Data on behalf of Customer, the Parties shall en- ter into a data processing agreement. To
9.2 The level and extent of IT security measures shall comply with Good Industry Practice and applicable regulatory require- ments.
10.1 Supplier may, at its expense and no more than once every 12 months, appoint its own personnel or an independent third party (or both) to verify that Customer's use, installation, or deployment of the Solu- tions and Services comply with the terms of the Agreement. Customer shall provide all reasonable information and assistance re- quested by Supplier.
10.2 In the event that Customer's use of a Solution or a Service is in violation of the Agreement, e.g. misuse of the license keys, Customer shall immediately settle under- payment on the basis of the current Charges and Customer shall pay all reason- able expenses incurred by Supplier related to such audit. In addition, Supplier is enti- tled to claim additional losses and damages recoverable under law.
11.1 The Charges for Customer's subscrip- tion to Solutions or Services are specified in the Order .
11.2 Supplier reserves the right to change or modify the Charges upon 45 days prior written notice to Customer. Customer's con- tinued use of the Solutions and Services af- ter the expiration of the 45 days following Customer's receipt of such notice shall con- stitute Customer's acceptance of and agree- ment to be bound by Suppliers modified Charges for the Solutions and Services.
12.1 Charges for Solutions and Services will be invoiced as set out in the Order. In the absence of such regulation, invoicing will take place in arrears based on Charges in- curred in the preceding quarter .
12.2 Payment must take place no later than current month + thirty (30) days after Customer has received the invoice.
12.3 In case of delayed payment, Supplier is entitled to interest at the rate of 1.5 % per commenced month on the outstanding amount from the due date until the date of payment.
12.4 All Charges are exclusive of VAT and shall be paid in U.S. Dollars, except as oth- erwise stated in the Order.
12.5 Customer is responsible for any local usage, valued added, or other tax levied by a taxing authority with jurisdiction over Cus- tomer. Fees paid to Supplier are exclusive of any such taxes and Supplier shall have no obligation to calculate or pay any such fees for which Customer may be liable, pro- vided however, that Supplier may charge Customer sales tax for any goods or ser- vices and in any jurisdiction in which Sup- plier is obligated to do so.
13.1 During the Term, Supplier warrants that:
(i) it has and will maintain all necessary licenses, consents, and permissions neces- sary for the performance of its obligations under the Agreement; and
(ii) Supplier complies with law applicable to Supplier .
13.2 The warranties above do not apply to defects or errors which are results of deliv- erables from Customer or third parties for which Customer is responsible.
13.3 Supplier shall at its expense remedy any breach of the warranties in Clause 13.1 in accordance with the maintenance re- quirements set out in Clause 3.
14.1 Except for breaches of Clauses 2.3, 2.5, 8, 15, and 22, the aggregate liability of
a Party under the Agreement shall in no event exceed an amount equal to 100 % of the total Charges paid by Customer in the twelve (12) months period preceding the date of the first claim made for the Solution (including Services) in question. If the Agreement has not been in force twelve (12) months at the time of occurrence of the breach for which the first claim is made, the "total Charges" shall be deemed to in- clude all Charges paid for the actual period lapsed for such Solution and multiplied with a factor to correspond to a twelve (12) month period. The above limitation of liabil- ity shall not apply to Charges payable by Customer.
14.2 The limitation of liability will apply to any and all liability irrespective of the basis of liability, i.e. damages, proportionate re- duction, penalties, and indemnity.
14.3 Except for breaches of Clauses 2.3, 2.5, 8, 15, and 22, the Parties shall not be liable for indirect losses or consequential damages of any kind, including, but not lim- ited to, loss of profits, loss of business or revenue, loss of goodwill or data, or loss re- lated to processing of Personal Data unless otherwise provided in the Agreement.
14.4 The Parties agree that any damage and loss incurred by a Party due to liability arising from (i) fraudulent misrepresenta- tion, willful misconduct or gross negligence, or (ii) personal death or bodily injury shall not be limited in any way by Clauses 14.1 and 14.3 or by any other Clause of the Agreement, except for Clause 16.
15.1 APartyshallindemnifytheotherParty or its Affiliates in respect of fines, penalties, damages awarded or any settlement amount agreed and reasonable legal and other professional fees and any other docu- mented cost incurred by or awarded against the relevant Party in connection with (i) a third-party claim relating to infringement of third-party intellectual property or other rights, including patents and copyrights with respect to hardware, software and other materiel provided by or through the other Party under the Agreement and (ii) breach of the confidentiality obligations in Clause 22.
15.2 The obligations under this Clause 15 in relation to third-party claims are condi- tional upon (a) the Party against whom a third-party claim is brought timely notifying the other Party in writing of any such claim, provided however that a Party's failure to provide or delay in providing such notice shall not relieve a Party of its obligations un- der this Clause 15 except to the extent such failure or delay prejudices the defense; (b) the Party who is obligated hereunder to de- fend a claim having the right to fully control the defense of such claim; and (c) the Party against whom a third-party claim is brought reasonably cooperating in the defense of such claim. Neither Party shall undertake any action in response to any infringement or alleged infringement that is prejudicial to the other Party's rights.
the extent applicable, Supplier will at all times comply with all applicable Data Pro- tection Laws, in relation to all Personal Data to which it has access in the course of per- forming its obligations under the Agree-
15.3 In case of a third-party claim set out in Clause 15.2, Supplier may, at its sole dis- cretion and expense:
(i) Replace the relevant infringing part with a comparable non-infringing part; or
(ii) Procure for Customer the right to continue using the relevant infring- ing part; or
(iii)If options (i) and (ii) are not com- mercially feasible, Supplier can ter- minate Customer's right to use the relevant Solution or Service with im- mediate effect (and without liability) but with an obligation to repay Cus- tomer any fees prepaid for the re- maining term of the Solution or Ser- vice terminated.
16.1 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION CLAUSE 13.1, SUP- PLIER DISCLAIMS ALL WARRANTIES, EX- PRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITH RESPECT TO THE SOLUTIONS AND THE SERVICES, AND INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PAR- TICULAR PURPOSE, NON-INFRINGEMENT, COMPLETENESS, SECURITY, QUALITY, AC- CURACY, PERFORMANCE, AND FITNESS OF USE.
16.2 WITHOUT LIMITING THE FOREGO- ING, SUPPLIER DISCLAIMS ALL WARRAN- TIES, EXPRESS OR IMPLIED, THAT THE SO- LUTION, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH IT WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SOLUTION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SOLUTION OR ANY SERVICES OR ITEMS OBTAINED THROUGH IT WILL OTHERWISE MEET THE CUSTOMER'S NEEDS OR EXPECTATIONS. 16.3 The Solutions and Services rely on and provide data from a variety of different data sources. Customer acknowledges and accepts that such data may not reflect the latest real-time situations.
16.4 Notwithstanding anything to the con- trary in the Agreement, any third-party data incorporated by Supplier in the Solutions or Services is provided "as is". Supplier does not warrant the completeness or accuracy of the data, material, third party advertise- ments or information or that it will satisfy Customer's requirements. Supplier disclaim all other express or implied warranties, con- ditions, and other terms in relation to such third-party data, whether statutory, arising from course of dealing, or otherwise, includ- ing without limitation terms as to quality, merchantability, fitness for a particular pur- pose and non-infringement.
16.5 Customer acknowledges and accepts that while due care and skill has been used, Supplier provides no warranties or repre- sentation that any price indications, quotes or any other calculations or assessments provided by or through the Solutions and Services will reflect actual prices,
circumstances, etc. and be obtainable by the Customer.
16.6 Customer hereby releases Supplier and its Affiliates from any and all liability re- lated to personal or property damages of any crew or any vessel, including damage to cargo, personal death, and bodily injury. Customer acknowledges and accepts that any decision concerning its vessels and crew is undertaken solely by Customer and that Solutions and Services are provided for reference only and shall in no way substi- tute sound judgment.
17 TERM AND TERMINATION CONVENIENCE
17.1 The Agreement becomes effective when the Order is duly signed (the "Effec- tive Date"). The Commencement Date and initial term are set out in the Order.
17.2 Unless terminated by either Party in accordance with Clause 17.3 the Agreement will automatically renew for periods of twelve (12) months following (i) the initial term or (ii) any subsequent renewal period. 17.3 A Party is entitled to terminate the Agreement in whole or in part for conven- ience with a written notice of at least ninety (90) days to the end of the initial term or a subsequent renewal period.
18 TERMINATION FOR CAUSE
18.1 A Party may terminate the Agree- ment, in whole or in part, immediately or by giving up to thirty (30) days' written notice of termination to the other Party if one or more of the following circumstances occurs: (i) The other Party commits a breach of the Agreement, which is not insignificant, and, provided the breach is capable of remedy, the Party in question has failed to remedy that breach within thirty (30) days following receipt of a written notice from the other Party to do so; and/or
(ii) The other Party commits a material breach of the Agreement, which is not ca- pable of remedy.
18.2 In the event of termination or expiry of the Agreement, howsoever occurring, Supplier shall upon Customer's request pro- vide all necessary termination assistance until a copy of all Customer Data has been transferred to Customer or a replacement service provider designated by Customer in the same format as Customer Data was de- livered to Supplier. Any such termination as- sistance shall be chargeable by Supplier on a time and material basis. Subject to Cus- tomer's payment of the Charges, Supplier shall be obliged to continue its provision of the Services temporarily until such success- ful transfer has been achieved.
18.3 Termination of the Agreement shall not affect either Party’s rights and duties under Clauses 2.3, 2.5, 5.2, 6, 14 – 16, 18.3, 19 – 27, and all defined terms shall survive.
19 CONTRACT DOCUMENTS AND IN- TERPRETATION
19.1 A reference to "includes" or "includ- ing" shall mean "includes without limitation" or "including without limitation".
19.2 The Agreement supersedes all prior agreements and understandings between the Parties with respect to the Solutions and the Services.
19.3 If any Product Terms apply to a Solu- tion or a Service provided by Supplier to Customer, such specific terms shall take precedence over these T&Cs.
20 SEVERABILITY AND WAIVER
20.1 If any term in the Agreement is found by competent judicial authority to be unen- forceable in any respect, the validity of the remainder of the Agreement will be unaf- fected, provided that such unenforceability does not materially affect the Parties' rights under the Agreement.
20.2 An effective waiver under the Agree- ment must be in writing signed by the Party waiving its right. Hence, the failure of a Party to exercise any right or remedy to which it is entitled will not constitute a waiver of such right or otherwise cause a diminution of the obligations created by the Agreement, unless explicitly agreed to in writing. Furthermore, a waiver by either Party of any instance of the other Party's noncompliance with any obligation or re- sponsibility under the Agreement will not be deemed a waiver of subsequent instances. 21 FORCE MAJEURE
21.1 EitherPartyisentitledtosuspendthe performance of its obligations without in- curring liability for damages under the Agreement if and to the extent that such performance is impossible due to extraordi- nary circumstances beyond the reasonable control of such Party and such circum- stances could not have been foreseen and avoided, including by virtue of business continuity plans, contingency plans, disas- ter recovery plans or other similar preven- tive measures in accordance with Good In- dustry Practice.
21.2 The Party claiming to be affected by any circumstance referred to in Clause 21.1 shall, without undue delay, notify the other Party of the intervention and of the cessa- tion of such circumstance.
21.3 Notwithstanding any other provisions of the Agreement, either Party is entitled to terminate the Agreement with immediate effect by written notice to the other Party if it is clear from the circumstances that the performance of the Agreement will be and is suspended under Clause 21.1 for more than 30 days.
22.1 The Parties shall not, apart from what is required by applicable law or by any court or other authority of competent jurisdiction, make use of, except for the purposes con- templated by the Agreement, disclose to any third party or publish any Confidential Information received by one Party from or in respect of the other Party under or in connection with the Agreement. The receiv- ing Party will use the same care and discre- tion to avoid disclosure, publication, or dis- semination of the disclosing Party’s Confi- dential Information as the receiving party uses with its own Confidential Information, but in any event, no less than a reasonable standard of care.
22.2 For the purpose of the Agreement, "Confidential Information" means a Party's trade secrets as well as other commercial and operational information and knowhow and any other information not generally known or reasonably ascertainable.
22.3 The Parties shall ensure that their Af- filiates, and its and their employees, also observe this Clause 22.
22.4 This Clause 22 shall not apply to infor- mation that is: (a) in the public domain through no fault of the receiving Party; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the re- ceiving Party on a non-confidential basis from a third party; or (d) is independently developed by the receiving Party without use of the disclosing Party’s disclosed non- public, confidential, or proprietary infor- mation.
22.5 TheprovisionsofthisClause22apply during the Term of the Agreement and for a period of three (3) years following the ex- piration of the Agreement.
23 PUBLIC STATEMENTS
23.1 SupplierisallowedtonameCustomer as a client for reference purposes in its mar- keting efforts and may strictly for the pur- pose thereof use Customer's tradenames and logos.
24 VARIATION OF THE AGREEMENT
24.1 NO AMENDMENT TO OR MODIFICA- TION OF, OR RESCISSION OR DISCHARGE OF THE AGREEMENT IS EFFECTIVE UNLESS IT IS IN WRITING, IDENTIFIED AS AN AMENDMENT TO OR RESCISSION OR DIS- CHARGE OF THE AGREEMENT , AND SIGNED BY AN AUTHORIZED REPRESENTA- TIVE OF EACH PARTY. ANY ADDITIONAL OR CONFLICTING TERMS CONTAINED ON ANY CUSTOMER PURCHASE ORDER SHALL NOT BE BINDING UPON THE PARTIES AND SHALL BE INVALID, NULL, VOID, AND UN- ENFORCEABLE.
25.1 Supplier is entitled to assign its rights and obligations under the Agreement to a third-party without Customer's approval, however, Customer is not entitled to assign any of its rights under the Agreement.
26.1 Each Party shall bear its own costs and expenses incurred in connection with the Agreement and the transactions con- templated herein, including, without limita- tion, all fees of its counsel and accountants. 27GOVERNING LAW AND ARBITRA- TION
27.1 The validity, construction and perfor- mance of the Agreement and the legal rela- tions among the parties to the Agreement shall be governed by and construed in ac- cordance with the laws of the State of New York without giving effect to its conflict of law principles.
27.2 Intheeventofanycontroversyordis- pute related to or arising out of the Agree- ment, THE PARTIES AGREE TO WAIVE
THEIR RIGHTS, IF ANY, TO A JURY TRIAL AND PRE-TRIAL DISCOVERY .
27.3 Any dispute, claim, or controversy arising out of or relating to the Agreement, or the breach thereof, shall be settled by binding and confidential arbitration admin- istered by the American Arbitration Associ- ation in accordance with its Commercial Ar- bitration Rules, and the place of arbitration shall be in New York, New York.
27.4 The Parties agree that all arbitration shall be confidential.
27.5 Each Party shall bear an equal share of the arbitrators’ and administrative fees of arbitration unless the arbitrator assigns fees to one Party.