Appsumer Terms and Conditions
1. Definitions and Interpretation
1.1 Except to the extent expressly provided otherwise, in these Terms and Conditions and in an Order Form:
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“Agreement” |
A contract between Appsumer and the Client made up of an Order Form, these Terms and Conditions and any documents expressly referred to in either of them, and any amendments to that contract from time to time.
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“Appsumer Platform” |
Appsumer’s proprietary Software as a Service (SaaS) for advertising, analytics and workflow automation accessed by End Users as part of the Appsumer Service.
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“Appsumer Service” |
The Appsumer Platform and associated assistance provided to Clients and End Users, including but not limited to:
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“Appsumer SLA” |
The service level agreement (SLA) which may be accessed at www.appsumer.io/platformsla.
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“Appsumer” |
Appsumer Ltd a company incorporated in England and Wales with registration number 09370695 and its registered office at 9th Floor 107 Cheapside, London, United Kingdom, EC2V 6DN acting on behalf of itself and its affiliates |
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“Business Days” |
Mondays to Fridays, excluding Bank and public holidays in England, United Kingdom. |
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“Change of Control” |
Means the acquisition by a third party of the voting rights attaching to more than fifty percent (50%) or more of the voting shares in the Client, and “Controlled” shall be construed accordingly. |
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“Charges” |
Means any charges (including Recurring Charges) incurred by the “Client”:
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“Client Data” |
Data that is processed by Appsumer (the Processor) on behalf of the Client (the controller), in relation to the Agreement and in accordance with the Client’s instructions.
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“Client” |
The entity identified as such in the Order Form. |
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“Clients’ Users” |
Individuals using our Clients’ products and services. |
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“Confidential Information” |
Means: (i) any information disclosed by either party to the other party during the Term (whether in writing, orally or otherwise) that at the time of disclosure is either marked as “confidential” or should reasonably be understood by the receiving party to be confidential and not in the public domain; and (ii) the existence of, and the terms set out in, the Agreement. |
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“Effective Date” |
Has the meaning given to it on the Order Form or (subject to clause 3.3) the date on which the Appsumer Service becomes available to the Client.
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“End User” |
Employees and other representatives of a “Client” who has access to and interacts with the Appsumer Platform. |
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“Force Majeure Event” |
An event, or a series of related events, that is outside the reasonable control of the party affected (including but not limited to failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, pandemics, epidemics explosions, fires, floods, riots, terrorist attacks and wars). |
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“Intellectual Property Rights” |
All intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs). |
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“Live Data Connection” |
A live data connection is an automated request to collect, manipulate and enter third party data into the Platform. A single third-party data source can have multiple live data connections.
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“Minimum Term” |
The least period of time allowable for use of the Appsumer Services as stated in an Order Form.
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“On-boarding Services” |
The integration of Client Data, Reconciliation and Customized Reports and other associated tasks associated with the onboarding of the Appsumer Service. |
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“Personal Data”, “Personally Identifiable Information” or “PII” |
As per General Data Protection Regulations 2018, information from which the identity of a living individual may be determined. Examples of Personal Data include (but are not limited to) first and last name, home or other physical address, email address, phone number, IP address or other contact information, and credit card or other payment information.
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“Pricing Matrix” |
The table setting out the recurring charges payable for the Appsumer Service, as attached to or otherwise referred to in the Order Form.
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“Processing” |
In relation to information or data means obtaining, recording, or holding the information or data or carrying out any operation or set of operations on the information or data, including:
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“Recurring Charges” |
The recurring charges payable by the Client for the Appsumer Service after the end of the Minimum Term or Renewal Term, as specified in the Order Form.
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“Term” |
Has the meaning given to it in clause 2.1.
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“Visitors” |
An individual visiting, or otherwise interacting with, Appsumer’s Website (http://www.appsumer.io/). |
1.2 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The clause headings do not affect the interpretation of these Terms and Conditions.
1.4 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
2. Term
2.1 The Agreement shall commence on the effective date and continue for the Minimum Term or the period of time agreed upon in the applicable Order Form. The Agreement shall automatically be extended for additional periods as agreed upon in the Order Form (“Renewal Period”), unless either Party provides the other Party with written notice of non-renewal at least sixty (60) days prior to the expiry of the Minimum Term or the then-current Renewal Period, as applicable. The Minimum Term, together with any Renewal Period, shall be referred to herein as the “Term”.
3. On-boarding Services
3.1 If agreed, Appsumer shall provide the On-boarding Services to the Client.
3.2 Appsumer shall use reasonable endeavors to ensure that the On-boarding Services are completed prior to the Effective Date.
3.3 In the event of a delay in the completion of the On-boarding Services resulting from the Client’s failure or delay in providing Appsumer with such information and assistance as Appsumer may reasonably require in connection with the On-boarding Services:
(a) Appsumer shall have no liability in respect of such delay; and
(b) the Client shall remain liable to pay the Charges with effect from the Effective Date, notwithstanding that the Appsumer Service is not available by such date.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the On-boarding Services by Appsumer shall be the exclusive property of Appsumer.
4. Appsumer Service
4.1 Appsumer shall create an account for the Client prior to or by the Effective Date.
4.2 Appsumer shall create access credentials to the Appsumer Platform for End Users of the Client and shall provide to these to those users prior to or by the Effective Date.
4.3 Appsumer hereby grants to the End users a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Appsumer Service for the Client’s own business purposes during the Term.
4.4 The license granted by Appsumer to the Client under clause 4.2 is subject to the Appsumer Service only being used by the Client’s employees, subcontractors and affiliates (End users) excluding competitors to Appsumer.
4.5 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the license granted by Appsumer to the Client under clauses 4.1 and 4.2 is subject to the following prohibitions:
(a) the Client must not sub-license its right to access and use the Appsumer Service; and
(b) the Client must not permit any unauthorized person to access or use the Appsumer Service.
4.6 The End users shall use reasonable endeavors, including reasonable security measures relating to its account access details, to ensure that no unauthorized person may gain access to the Appsumer Service.
4.7 The End users must not use the Appsumer Service in any way that causes, or may cause, damage to the Appsumer Service or the Platform or impairment of the availability or accessibility of the Appsumer Service.
4.8 The End Users must not use the Appsumer Service:
(a) in any way that is unlawful, illegal, fraudulent, negligent, or harmful; or
(b) in connection with any unlawful, illegal, fraudulent, negligent, or harmful purpose or activity; or
(c) in any way that infringes applicable data protection regulations such as the GDPR and/or others.
4.9 For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code, and source code) of the Platform, either during or after the Term.
4.10 Appsumer may suspend the provision of the Appsumer Service if any amount due to be paid by the Client to Appsumer under the Agreement is overdue, and Appsumer has given to the Client at least ten (10) days’ notice, following the amount becoming overdue, of its intention to suspend the Appsumer Service on this basis.
4.11 Appsumer shall use reasonably commercial endeavors to carry out scheduled or planned maintenance to the Platform between 22:00 and 08:00 Mondays to Fridays and over the United Kingdom Weekend, that is Saturday and Sunday, and to give the Client at least two (2) Business Days’ prior notice of any maintenance that will or is likely to result in disruption to the Appsumer Service within Business Days.
5. Support Services
5.1 Appsumer shall provide the Client with support in relation to the Appsumer Service in accordance with the terms of the Appsumer SLA.
6. Client obligations
6.1 The Client must provide to Appsumer, or procure for Appsumer, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licenses, consents and permits, as are reasonably necessary to enable Appsumer to perform its obligations under the Agreement.
6.2 The Client must provide to Appsumer, or procure for Appsumer, such access to the Client’s computer hardware, software, networks, and systems as may be reasonably required by Appsumer to enable Appsumer to perform its obligations under the Agreement.
7. Client Data
7.1 The Client hereby grants to Appsumer a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of Appsumer’s obligations and the exercise of Appsumer’s rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Appsumer’s obligations and the exercise of Appsumer’s rights under the Agreement, and in accordance with the Client’s contractual requirements.
8. Intellectual Property Rights
8.1 Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from Appsumer to the Client, or from the Client to Appsumer. Each Party shall retain all rights, title and interests in and to any Intellectual Property Rights that are owned by or licensed or sublicensed to such Party prior to or independent of this Agreement.
8.2 (i) All Intellectual Property Rights in in all materials created or performed by Appsumer, solely or jointly with any person, in the course of providing the On-boarding Services (“Work”) shall vest or remain vested in Appsumer.
(ii) Any derivatives (excluding any personally identifiable information) including but not limited to any aggregated data sets of advertising performance data shall belong to Appsumer.
8.3 Appsumer hereby grants to the Client a royalty-free, non-exclusive, non-transferable license to access and use the Work for the Client’s internal business purposes during the Term.
8.4 At Appsumer’s request and expense, the Client shall perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution or delivery of) all further documents which Appsumer reasonably considers necessary to vest ownership of the Work in Appsumer or otherwise to give effect to this clause 8.
9. Charges
9.1 Appsumer shall issue invoices to the Client in accordance with the invoicing and payment terms set out in the Order Form.
9.2 The Client acknowledges and accepts that the Recurring Charges are determined on the basis of the Client’s expected use of the Appsumer Service as measured by the Client’s advertising spend and use of live data connections, and that if the Client’s actual advertising spend and/or usage of live data connections exceeds such expected use then Appsumer shall be entitled to increase the Recurring Charges in accordance with the Pricing Matrix.
9.3 Following the issue of an invoice in accordance with clause 9.1, the Client must pay the Charges to Appsumer by bank transfer in accordance with the invoicing and payment terms set out in the Order Form and cover any bank fees required.
9.4 Appsumer may increase the Recurring Charges at any time following expiry of the Minimum Term by giving to the Client at least thirty (30) days’ prior written notice.
9.5 The Charges are exclusive of UK value added tax (VAT) or any other applicable sales tax, which will be added to the Charges and payable by the Client to Appsumer.
9.6 If the Client does not pay any amount properly due to Appsumer under these Terms and Conditions, Appsumer may:
(a) charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Confidentiality
10.1 Each party (the “Receiving Party”) shall:
(a) keep the Confidential Information of the other party (the “Disclosing Party”) strictly confidential;
(b) not disclose the Disclosing Party’s Confidential Information to any person without the Disclosing Party’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;
(c) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information as the Receiving Party;
uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Disclosing Party’s Confidential Information.
10.2 Notwithstanding clause 10.1, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of such Confidential Information.
10.3 This clause 10 imposes no obligations upon the Receiving Party with respect to the Disclosing Party’s Confidential Information that:
(a) is known to the Receiving Party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of Appsumer; or
(c) is obtained by the Receiving Party from a third party in circumstances where the Receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality.
10.4 The restrictions in this clause 10 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Receiving Party on any recognized stock exchange.
10.5 The provisions of this clause 10 shall continue in force for a period of five (5) years from the date of disclosure, at the end of which period they will cease to have effect.
11. Indemnity
11.1 The Client agrees to indemnify, defend and hold harmless the Appsumer, its affiliates, officers, directors, employees, consultants and agents against any third party claims, damages and penalties, and all related costs and expenses (including reasonable attorneys’ fees) based on – (i) caused by gross negligence, fraud or willful misconduct by the indemnifying party including but not limited to the death or bodily injury of any third party, including any agent, employee, consultant, worker, client, business invitee or business visitor of a party or the damage loss or destruction of any tangible personal or real property; or (ii) breach of any applicable laws, or (iii) any materials or data belonging to, or provided by the Client.
11.2 Appsumer will indemnify, and defend the Client from any claims by third parties that Appsumer Services infringe upon or misappropriate any existing third-party United Kingdom patent, trade-mark, or copyright (a “Claim”), and will pay any damages, settlements, costs, and expenses finally awarded against Client by a court or arbitrator in any proceeding related to such claim, provided, however, that Client (i) give to Appsumer prompt written notice of each Claim threatened or received by Client, (ii) give to Appsumer the sole right to control and direct the investigation, defense and settlement of such Claim, and (iii) have not compromised or settled the Claim. In the event that (1) Client becomes aware of an actual or potential Claim, or (2) Client provides Appsumer with notice of an actual or potential Claim, Appsumer may at Appsumer’s sole decision and determination: (A) procure for Client the right to continue to use Appsumer Services; or (B) replace or modify Appsumer Services so that Client’s use is no longer infringing; or (C) if (A) or (B) are not commercially reasonable, terminate the Agreement and refund Client any prepaid, unused fees paid by Client.
Appsumer will have no liability to Client under this section and will be indemnified and held harmless by Client against any Claim in respect of any use of the Platform Software in the event the Platform: (I) is used by Client or the End Users outside the scope or the license granted in this Agreement or in a manner or for a purpose other than that for which it was supplied; (II) is modified by Client or the End Users without the written consent of Appsumer
The Client may participate in the defense and settlement of the claim at the Client’s own expense. Each party shall make all reasonable efforts to mitigate damages.
11.3 The remedies set forth in section 11.2 constitutes The Client’s sole and exclusive remedies, and Appsumer’s entire liability, with respect to infringement of third-party intellectual property rights.
12. Warranties
12.1 Appsumer warrants to the Client that:
(a) Appsumer has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement; and
(b) Appsumer will comply with all applicable legal and regulatory requirements applying to the exercise of Appsumer’s rights and the fulfilment of Appsumer’s obligations under the Agreement.
12.2 The Client warrants to Appsumer that:
(a) it is a corporation duly organized and validly existing under the laws of the jurisdiction above stated, with full power and authority to carry on its business as now conducted and to enter into and carry out the terms of this Agreement
(b) it agrees with Appsumer’s Privacy Policy, the current version of which may be accessed at www.appsumer.io/privacy; and
(c) it has obtained all necessary corporate and other authorizations and approvals required for the execution and delivery of this Agreement;
(d) this Agreement constitutes its legal, valid and binding agreement, enforceable against it in accordance with its terms, subject to the laws of bankruptcy and laws of general applicability relating to or affecting enforcement of creditors’ rights, and judicial discretion in the application of principles of equity;
(e) the execution, delivery and performance of this Agreement or anything provided to Appsumer under this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party or breach any applicable law or violate any third party’s right;
(f) it is compliant with all applicable laws and regulations.
12.4 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY LAW, PARTIES DISCLAIM ALL OTHER WARRANTIES, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES PERTAINING TO FITNESS FOR PURPOSE AND MERCHANTABILITY.
13. Acknowledgements and warranty limitations
13.1 The Client acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of these Terms and Conditions, Appsumer gives no warranty or representation that the Appsumer Service will be wholly free from defects, errors, and bugs.
13.2 The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, Appsumer gives no warranty or representation that the Appsumer Service will be entirely secure.
13.3 Except to the extent expressly provided otherwise in the Agreement, Appsumer does not warrant or represent that the Appsumer Service or the use of the Appsumer Service by the Client will be suitable for the Client’s purposes, or will provide the Client with any specific result, return on investment or other outcome.
14. Limitations and exclusions of liability
14.1 Nothing in the Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for gross negligence, willful misconduct, fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law;
(d) exclude any liabilities that may not be excluded under applicable law; or
(e) limit any payment obligations of the Client.
14.2 The limitations and exclusions of liability set out in this clause 14 and elsewhere in the Agreement:
(a) are subject to clause 14.1; and
(b) govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.
14.3 Appsumer shall not be liable to the Client in respect of any losses arising out of a Force Majeure Event; or any loss of profits or anticipated savings; or any loss of revenue or income; or any loss of use or production; or any loss of business, contracts or opportunities; or any loss or corruption of any data, database or software; any loss of goodwill or any breach of GDPR requirements of lawfulness, fairness and accuracy in relation to any Personally Identifiable Information the Client uploads, with regards to its Clients (Clients’ Uses), to, or processes on, the Appsumer platform.
14.4 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN RESPECT OF ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND AND HOWEVER CAUSED.,
14.5 EXCEPT AS PROVIDED IN THIS SECTION 14, THE TOTAL LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER THE AGREEMENT IN RESPECT OF ANY EVENT OR SERIES OF RELATED EVENTS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY THE CLIENT TO APPSUMER UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
15. Force Majeure Event
15.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
15.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16. Termination
16.1 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits any material breach of the Agreement which, in the case of a breach which is remediable, is not remedied within thirty (30) days of the date on which the other party is given written notice requiring the breach to be remedied.
16.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under the Agreement).
16.3 Appsumer may terminate the Agreement immediately by giving written notice of termination to the Client if the Client is subject to a Change of Control resulting in the Client being Controlled by a competitor of Appsumer.
16.4 The Client may terminate the Agreement immediately by giving written notice of termination to Appsumer if:
- an integrated third-party data source providing the Client representing at least ten per cent (10%) of the Client’s total data usage is not available for any reason; and
- Appsumer is unable to restore such data source within thirty (30) days of receiving a notice from the Client confirming its intention to terminate the Agreement pursuant to this clause.
16.5 Upon termination Appsumer will:
Create unintelligible data sets using aggregation, pseudonymization and obfuscation to generate anonymized aggregated data sets of advertising performance data. These anonymized data sets will be used in the form of benchmarking, forecasting and other reports that are made available for the wider industry and across Appsumer on behalf of itself and its Affiliates.
17. Effects of termination
17.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 9, 10, 12, 14, 17, 20, 21, 22, 23, 24.1, 24.2, 26 and 27.
17.2 The termination of the Agreement shall not affect the accrued rights of either party.
17.3 Within 30 days following the termination of the Agreement for any reason (and without prejudice to the parties’ other legal rights):
(a) the Client must pay to Appsumer any Charges in respect of Services provided to the Client before the termination of the Agreement; and
(b) unless the Agreement is terminated by Appsumer pursuant to clause 16.1 or clause 16.2, Appsumer must refund to the Client any Charges paid by the Client to Appsumer in respect of Services that were to be provided to the Client after the termination of the Agreement.
18. Notices
18.1 Any notice from one party to the other party under the Agreement must be given by one of the following methods (using the relevant contact details set out in the Order Form and clause 18.2):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting;
(c) sent by email.
provided that if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
18.2 Appsumer’s contact details for notices under this clause 18 are as follows:
Appsumer Ltd.
The Space 235 High Holborn,
London, WC1V 7DN
A copy of any legal notice under this Agreement must also be sent to legal@inmobi.com.
18.3 The addressee and contact details set out in the Order Form and clause 18.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this clause 18.
19. Subcontracting
19.1 Appsumer may subcontract any of its obligations under the Agreement, provided that Appsumer shall remain responsible to the Client for the performance of any subcontracted obligations, and provided that it holds that subcontractor to terms and conditions no less onerous than the ones imposed here.
20. Assignment
20.1 The Client must not assign, transfer, or otherwise deal with its contractual rights and/or obligations under the Agreement without the prior written consent of Appsumer, such consent not to be unreasonably withheld or delayed.
21. No waivers
21.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
21.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.
22. Severability
22.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
22.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
23. Third party rights
23.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
24. Variation
24.1 The Agreement may not be varied except in accordance with clause 24.
24.2 The Agreement may be varied by means of a written document signed by or on behalf of each party.
24.3 Appsumer may vary the Agreement by giving to the Client at least 30 days’ written notice of the proposed variation, providing that if Appsumer gives to the Client a notice under this clause 24.3, the Client shall have the right to terminate the Agreement by giving written notice of termination to Appsumer at any time during the period of 14 days following receipt of Appsumer’s notice.
25. Publicity
25.1 Separate from the consent agreeing to the terms of this agreement and subject to obtaining the Client’s prior written consent (not to be unreasonably withheld or delayed), the Client agrees that Appsumer shall be entitled to use the Client’s name for marketing and publicity purposes.
26. Entire agreement
26.1 The Agreement shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
26.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
26.3 The provisions of this clause 26 are subject to clause 14.1.
27. Law and jurisdiction
27.1 The Agreement shall be governed by and construed in accordance with English law without regards to any conflict of laws’ provisions.
27.2 Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of London, England.