SECTION A – STANDARD CONDITIONS

  1. DEFINITIONS AND INTERPRETATION

1.1 The definitions and rules of interpretation in this clause shall apply in the Agreement.

Acceptable Use Policy means any acceptable use policy relating to the Services as published by Cox from time to time;

Affiliate means in relation to a party, any entity that directly or indirectly Controls, is Controlled by, or is under common Control with that party, for so long as the Control exists;

Agreement has the meaning given to it in clause 2.1;

Applicable Law means all applicable laws, statutes, regulations and codes from time to time in force;

Authorised Persons means the directors, employees, officers, professional advisers, agents, contractors and subcontractors of the Recipient Party (and, where Cox is the Recipient Party, any Cox Affiliate and the directors, employees, officers, professional advisers, agents, contractors and subcontractors of any such Cox Affiliate) with a need to know any Confidential Information of the Disclosing Party;

Authorised Users means those employees and directors of: (a) the Customer; (b) any Named Affiliate; and (c) any third party individual contractor or anyone who is not an employee or director of the Customer or a Named Affiliate, who are authorised to access and use the Services in accordance with the Order;

Business Day means any day which is not a Saturday, Sunday or public holiday in England and Wales;

Charges means the charges set out in the Order, as may be increased by Cox from time to time in accordance with clause 7.9;

Charges Increase Notice has the meaning given to it in clause 7.9;

Charges Increase Notice Period has the meaning given to it in clause 7.9;

Claim means any claim, action, proceeding or investigation of any nature or kind and includes the allegation of a claim;

Commencement Date means the Commencement Date stated in, or determined in accordance with, the Order;

Confidential Information means in relation to a party (the “Disclosing Party”) all information in any medium or format (including written, oral, visual or electronic, and whether or not marked or described as “confidential”), together with all Copies, which relates to the Disclosing Party or to its Affiliates, employees, officers, customers or suppliers (and/or any of its Affiliates’ employees, officers, customers or suppliers), and which is directly or indirectly disclosed by the Disclosing Party or on its behalf to the other party (the “Recipient Party”) in the course of their dealings relating to the Agreement, whether before or after the date of the Order. However, the following information is not “Confidential Information” for the purposes of the Agreement: (a) information which is in the public domain other than as a result of breach of the Agreement or any separate confidentiality undertaking between the parties; (b) information which the Recipient Party received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (c) information which the Recipient Party can show by its written records was developed or created independently by or on behalf of the Recipient Party;

Control means: (a) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to: (i) cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the relevant entity; (ii) appoint or remove all, or the majority, of the directors or other equivalent officers of the relevant entity; or (iii) give directions with respect to the operating and financial policies of the relevant entity with which the directors or other equivalent officers of an entity are obliged to comply; or (b) the holding beneficially of more than 50 per cent of the issued share capital of the relevant entity (excluding any part of that issued share capital that carries no right to participate, or no right to participate beyond a specified amount, in a distribution of either profits or capital);

Controller Standard Contractual Clauses has the meaning given to it in clause 9.2;

Copies means all reproductions (hard copy or electronic), extracts, summaries or analyses of Confidential Information in any medium or format made by or on behalf of any party;

Cox means Cox Automotive Retail Solutions Limited registered in England and Wales with company number 02838588;

Customer means the entity identified as the Customer in the Order;

Customer Data means data inputted by the Customer, any Named Affiliate, any Authorised User or by or on behalf of Cox on the Customer’s (or the applicable Named Affiliate’s) behalf into the Services;

Customer Default has the meaning given to it in clause 5.2;

Customer Feedback means any feedback (including suggestions regarding performance improvements and additional functionality) relating to the Services and/or Documentation, provided by or on behalf of the Customer, any Named Affiliate and/or any Authorised User to Cox;

Customer Materials means (a) the Customer Data; and (b) any software, methodology or process, documentation, data or other material in whatever form set out in the Order;

Data controller, data processor, data subject, personal data, processing, personal data breach and appropriate technical and organisational measures shall be interpreted in accordance with the DP Legislation;

DP Legislation means the GDPR, the UK Data Protection Act 2018 and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, and all other Applicable Law relating to processing of personal data and privacy that may exist in any relevant jurisdiction;

Documentation means the documentation, as updated from time to time, provided to the Customer by Cox in connection with (and either separately to or accessed through) the Services, including any Enhancements and Modifications thereto;

End User Terms means any agreement that Cox requires an Authorised User to agree to in order to access and use the Services;   

Enhancements and Modifications means any enhancements and/or modifications to the Services and/or Documentation carried out during the course of the Agreement, including any enhancements and modifications arising out of or in connection with Customer Feedback, regardless in all cases of who carries out such enhancements and modifications;

Force Majeure Event means an event the occurrence of which is beyond the reasonable control of Cox, including (without limitation) pandemics or epidemics, strikes, lock-outs or other industrial disputes (whether involving the workforce of Cox or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;

GDPR means, in each case to the extent applicable to the processing activities: (a) Regulation (EU) 2016/679; and (b) Regulation (EU) 2016/679 as amended by any legislation arising out of the withdrawal of the UK from the European Union;

Insolvency Event means the occurrence of any one or more of the following events in relation to the affected party: (a) that party becomes unable to pay its debts (within the meaning of section 123(1)(e) or (2) of the Insolvency Act 1986), admits its inability to pay its debts or becomes insolvent; (b) a petition is presented, an order made or a resolution passed for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of that party; (c) an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to that party and/or over all or any part of the assets of that party; (d) that party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or (e) anything equivalent to any of the events or circumstances listed in limbs (a) to (d) (inclusive) occurs in any applicable jurisdiction;

Intellectual Property Rights means: (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and confidential information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future; and (c) all applications, extensions and renewals in relation to any such rights;

IPR Claim means any Claim against the Customer by a third party that the use of the Services and/or Documentation by the Customer, Named Affiliate or any Authorised User, in accordance with the terms of the Agreement, infringes the copyright of that third party in the Territory;

Loss means loss, damage, fines, liability, charge, expense, outgoing or cost (including all reasonable legal and other professional costs) of any nature or kind, and Losses shall be construed accordingly;

Minimum Subscription Term means the Minimum Subscription Term stated on the Order;

Named Affiliate means any Affiliate of the Customer identified in an Order;

Order means the order entered into by the parties incorporating these Service Use Terms;

Processor Standard Contractual Clauses has the meaning given to it in clause 9.15;

Purpose means the purpose for the use of the Services as specified in the Order;

Renewal Subscription Term has the meaning given to it in clause 13.2;

Required Equipment means the equipment specified by Cox in the Order and/or in the Documentation;

Security Breach means any accidental, unauthorised or unlawful destruction, loss, alteration, or disclosure of, or access to the personal data that Cox processes in the course of providing the Services;

Services means (as applicable) the Cox software-as-a-service solution, mobile application, web application and/or computer programs (in each case comprising the Software), including any Enhancements and Modifications thereto, as specified in the Order;

Service Use Terms means these Modix service use terms;

SLA means Cox’s standard service level agreement in relation to the Services as attached to the Order (if applicable);

Software means the software and/or computer programs (in object code or source code form), program interfaces and any tools or object libraries embedded in any software or program (including in mobile and web software applications) and/or APIs, including in each case any Enhancements and Modifications thereto, used in delivering the Services;

Territory means the territory specified in the Order;

Term means the period from and including the date of the Order to and including the date on which the Agreement is terminated in accordance with its terms;

Usage Limitations means any usage limitations specified in the Order;

VAT means value added tax or any other applicable sales or turnover tax from time to time; and

Virus means any thing or device (including any software, code, file or programme) which may: (a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (b) prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or (c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2 Clause headings shall not affect the interpretation of the Agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to writing or written includes email.

1.8 References to clauses are to the clauses of these Service Use Terms.

1.9 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement and as amended by any subsequent statute or statutory provision.

1.10 Any phrase introduced by the expressions including, includes, in particular or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding those terms.

  1. STRUCTURE OF THE AGREEMENT

2.1 The agreement comprises the Order and these Service Use Terms, to the extent applicable in accordance with clauses 2.2 and 2.3 below (the “Agreement”).

2.2  Subject to clause 2.3 below, the terms and conditions contained in this Section A shall apply to the Agreement (and the conditions contained in Sections B to E (inclusive) shall not apply to the Agreement).

2.3 Where the Customer is located in:

2.3.1 Italy, the terms and conditions contained in this Section A shall apply to the Agreement as varied and/or supplemented by the terms and conditions contained in Section B;

2.3.2 Austria, the terms and conditions contained in this Section A shall apply to the Agreement as varied and/or supplemented by the terms and conditions contained in Section C;

2.3.3 France, the terms and conditions contained in this Section A shall apply to the Agreement as varied and/or supplemented by the terms and conditions contained in Section D; or

2.3.4 Spain, the terms and conditions contained in this Section A shall apply to the Agreement as varied and/or supplemented by the terms and conditions contained in Section E.

2.4 If there is any conflict or ambiguity between the Order, this Section A of these Service Use Terms and any of Sections B to E of these Service Use Terms (where forming part of the Agreement pursuant to clause 2.3 above), the following descending order of precedence shall apply to the extent required to resolve the conflict or ambiguity:

2.4.1 the Order;

2.4.2 Sections B to E of these Service Use Terms (where forming part of the Agreement pursuant to clause 2.3 above); and

2.4.3  this Section A of these Service Use Terms.

2.5  These Service Use Terms shall apply to the exclusion of and shall prevail over any terms and conditions of contract imposed or sought to be imposed by the Customer at any time.

  1. USE OF THE SERVICES AND DOCUMENTATION

3.1 Subject to the terms of the Agreement, Cox hereby grants to the Customer a non-exclusive, non-transferable, non-sub-licensable right during the Term:

3.1.1 to permit the Authorised Users to access and use the Services in the Territory for the Purpose;

3.1.2 where the Services are accessed via a mobile app on a smartphone or tablet device, to permit the Authorised Users to download, access and use the mobile app on a smartphone or tablet device in order to access and use the Services in the Territory for the Purpose; and

3.1.3 to permit the Authorised Users to access and use the Documentation to enable such Authorised Users to use the Services.

3.2 The Customer’s right under this clause 3 to permit access to and use of the Services and Documentation shall be limited to any Usage Limitations specified in the Order.

3.3 The process for designating, enrolling and/or disabling Authorised Users shall be as set out in the Order.

3.4 The Customer shall not:

3.4.1 attempt to copy, reproduce, duplicate, modify, manufacture, reverse engineer, disassemble, reverse compile, create derivative works from or distribute all or any portion of the Services except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties;

3.4.2 access all or any part of the Services in order to build a product or service which competes with the Services;

3.4.3 attempt to undertake any security testing of the Services without the prior written consent of Cox;

3.4.4 allow any third parties to access or use the Services or Documentation (save for Authorised Users in accordance with the terms of the Agreement);

3.4.5 store, insert, introduce, distribute or transmit any material, information or data through the Services (and/or otherwise use the Services in any manner) that is unlawful, harmful, threatening, abusive, defamatory, indecent, obscene, infringing, harassing, tortuous, menacing, racially or ethnically offensive, that is invasive of another person’s privacy, that facilitates illegal activity, that depicts sexually explicit images or that promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

3.4.6 insert, include or introduce any Virus into the Software and/or the Services;

3.4.7 use the Services in a manner which infringes the Intellectual Property Rights, proprietary or personal rights of any third party, including data subjects;

3.4.8 use the Services to send unsolicited or unauthorised advertising, promotional material, ‘junk mail’, ‘spam’, chain letter or pyramid schemes, offensive adult services, communications promoting email address data lists or any other form of solicitation to any data subject of third parties, or otherwise in any manner that is inconsistent with good faith commercial practice to Cox’s detriment; and/or

3.4.9 forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Services.

3.5  The Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Services and Documentation and shall notify Cox promptly of any such unauthorised access or use.

3.6 The Customer shall be responsible for all acts and omissions of Authorised Users and/or Named Affiliates as though they were its own acts or omissions under the Agreement.

3.7 Cox may at any time audit the Customer’s compliance with this clause 3 (and/or any provisions relating to Authorised Users and/or the access to or use of the Services or Documentation in the Order) by any lawful, technical means and the Customer shall provide all reasonable assistance and information to Cox necessary to establish that the Services are only being accessed and used in accordance with the Agreement.

3.8 Cox may amend the Services from time-to-time provided such changes apply to other customers for the Services and do not materially and negatively impact the functionality, performance or security of the Services.

  1. SUPPORT SERVICES

4.1 Subject to the Customer complying with clause 5.1.1 (including upgrading the Required Equipment when notified to do so by Cox), Cox shall provide the Support Services in accordance with the SLA attached to the Order.

4.2 Where there is no SLA attached to the Order, subject to the Customer complying with clause ‎5.1.1 (including upgrading the Required Equipment when notified to do so by Cox), to any planned downtime or emergency downtime and/or to matters outside of Cox’s control (including, without limitation, failures and/or the actions of third parties which are outside Cox’s control, any Customer Defaults and/or any Force Majeure Events), Cox shall use its reasonable endeavours to ensure that the Services are available. Cox shall provide at least four (4) hours electronic notice of any planned downtime.

  1. CUSTOMER OBLIGATIONS

5.1 The Customer shall (and shall procure that each Named Affiliate shall):

5.1.1 maintain adequate and reliable internet connections (with upload speeds of not less than 1Mbps, noting that the Services will be optimised at faster speeds) and technical capabilities (including upgrading the Required Equipment when required by Cox) to access and use the Services, in accordance with Cox’s instructions from time to time;

5.1.2 maintain appropriate and prudent IT security arrangements;

5.1.3 ensure that the Authorised Users comply with the Acceptable Use Policy and/or End User Terms (as applicable);

5.1.4 provide necessary access to facilities and systems as reasonably required by Cox to perform its obligations under the Agreement;

5.1.5 provide necessary access to data, materials and other information reasonably required by Cox (in such format as Cox may require from time to time) in connection with the Services and ensure that such data, materials and information are accurate and complete in all material respects;

5.1.6 obtain (prior to the Commencement Date) and maintain (throughout the Term) all necessary licences, permissions and consents which may be required in relation to its use of the Services;

5.1.7 maintain sufficient licences to any content, software or Intellectual Property Rights licensed from third parties or from Cox separate to the Agreement that are operated using or in conjunction with the Services;

5.1.8 comply with all Applicable Law with respect to its activities using the Services or otherwise under the Agreement (including, without limitation, in relation to any marketing communications sent using the Services);

5.1.9 ensure that the reputation, goodwill and brand of Cox are fully preserved and protected and shall not use the Services in any way as to bring the Services or Cox into disrepute;

5.1.10 carry out all other Customer responsibilities set out in the Order; and

5.1.11 cooperate with Cox in all matters relating to the Agreement.

5.2 If Cox’s performance of its obligations under the Agreement is prevented or delayed by any act, omission or breach of the Customer, its agents, subcontractors, consultants or employees (“Customer Default”) then, without prejudice to any other right or remedy it may have, Cox shall:

5.2.1 not be liable for such failure or delay to perform its obligations, and shall not be treated as being in breach of the Agreement; and

5.2.2 be granted a reasonable extension of time in relation to any timescales affected by the Customer Default.

  1. WARRANTIES, REPRESENTATIONS AND EXCLUSIONS

6.1 Each party represents and warrants to the other party that:

6.1.1 it is duly incorporated and validly existing under the laws of the country in which it is incorporated and is fully qualified and empowered to own its assets and carry on its business;

6.1.2 it has the requisite power, right and authority to enter into and perform its obligations under the Agreement; and

6.1.3 the Agreement, when executed, will constitute valid, lawful and binding obligations on it, enforceable in accordance with its terms.

6.2 Cox warrants that the Services will operate in all material respects in accordance with the Documentation, but makes no representation, and gives no warranty or undertaking, that the operation or availability of the Services will be uninterrupted or error-free.

6.3 The warranty in clause 6.2 shall not apply to the extent of any non-conformance which is caused by the Customer’s breach of the Agreement, access to or use of the Services contrary to Cox’s instructions or modification or alteration of the Services other than by or on behalf of Cox.

6.4 If Cox fails to comply with the warranty set out in clause 6.2, it shall use its reasonable endeavours to rectify such failure as soon as reasonably practicable. Cox’s obligations under this clause 6.4 shall be the Customer’s sole and exclusive remedy in respect of a breach of the warranty set out in clause 6.2.

6.5  The Customer acknowledges that:

6.5.1 Cox has no direct control over the availability of bandwidth over the entirety of the internet and that Cox shall not be responsible for delays caused by such unavailability;

6.5.2 the internet is not a secure environment and that it is not possible for either party to guarantee the integrity or security of any data sent between the parties or sent to any third party; and

6.5.3 (where relevant to the Services) Cox does not guarantee the delivery of emails or texts to any proposed recipient of such emails or texts as delivery is dependent upon correct and up to date information being provided by the Customer, internet availability and connectivity, various anti-spam and junk mail systems, network availability and other matters outside of Cox’s control.

6.6 Except as expressly provided in clause 6.2, the Services are provided “as is” and to the extent permitted by law, Cox disclaims all other conditions, warranties or other terms which might have effect between the parties with respect to the Services, or be implied or incorporated into the Agreement, whether by statute, common law or otherwise, including any implied conditions, warranties, or other terms relating to satisfactory quality, reasonable skill and care, fitness for any particular purpose, ability to achieve a particular result or arising from course of dealing or usage of trade. Cox does not warrant anything in relation to systems that do not make up the Services or the connection to those systems.

  1. CHARGES AND PAYMENT

7.1  The Charges payable under the Agreement shall be invoiced in accordance with the timeframes set out in the Order.

7.2  The Customer shall pay each invoice submitted to it by Cox, in full and cleared funds, within twenty eight (28) days of the date of the invoice. All sums due to Cox under the Agreement shall be calculated and paid in the currency stated in the Order, and be paid by the Customer to the bank account nominated in writing by Cox from time to time. If the Customer does not pay by direct debit, then Cox may charge the Customer an administration fee in addition to the Charges. All Charges are non-refundable, except where and to the extent expressly provided for in the Agreement.

7.3 All sums due to Cox under the Agreement are exclusive of VAT (if applicable) which shall be charged in addition thereto in accordance with the relevant regulations in force at the time of making the relevant taxable supply and shall be paid by the Customer against receipt from Cox of a valid VAT invoice in respect thereof.

7.4 If the Customer, reasonably and in good faith, disputes whether any amounts invoiced are due and payable in accordance with the terms of the Agreement, it shall notify Cox of such dispute within fourteen (14) days of receipt of the invoice, providing reasonable details of why the invoiced amount is incorrect and, if possible, how much the Customer considers is due. The Customer shall pay:

7.4.1 any undisputed amounts in accordance with clause 7.2; and

7.4.2 any disputed amount agreed or determined to be payable, within twenty eight (28) days of the date of such agreement or determination.

7.5  Without prejudice to any other right or remedy that it may have, if the Customer fails to pay any amount due to Cox on the applicable due date the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the National Westminster Bank’s base rate from time to time (or any other bank base right that Cox may choose from time to time). Such interest shall accrue on a daily basis from the date on which the amount became overdue until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7.6 The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding. Cox may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Cox to the Customer.

7.7 All sums payable to Cox under the Agreement shall become due immediately on its termination, despite any other provision. This clause 7.7‎ is without prejudice to any right to claim for interest under Applicable Law, or any such right under the Agreement.

7.8 The Charges exclude the cost of hotel, subsistence, travelling and any other ancillary expenses reasonably incurred by the individuals whom Cox engages in connection with the performance of its obligations under the Agreement. Cox shall be entitled to invoice for all such costs and expenses provided that they are approved by the Customer in advance. The Customer shall pay each such invoice submitted to it by Cox, in full and cleared funds, within twenty eight (28) days of the date of the invoice.

7.9 Cox may increase the Charges from time to time on no less than thirty (30) days notice to the Customer (such notice being the “Charges Increase Notice” and such 30 day period being the “Charges Increase Notice Period”). If the increase to the Charges specified in the Charges Increase Notices is not acceptable to the Customer, the Customer shall notify Cox of this within the Charges Increase Notice Period. In such circumstances, the Charges shall not increase, but Cox shall have a right to terminate the Agreement by giving no less than thirty (30) days written notice to the Customer. If the Customer has not notified Cox that it does not accept the increase to the Charges as set out in the Charges Increase Notice in accordance with this clause 7.9 during the Charges Increase Notice Period, then the Customer shall be deemed to have agreed to the increase to the Charges set out in the Charges Increase Notice.

  1. INTELLECTUAL PROPERTY RIGHTS

Services and Documentation

8.1 Cox and/or its licensors shall retain ownership of all rights, title and interest, including Intellectual Property Rights, in and to the Services and Documentation. The Customer acknowledges (on behalf of itself and each Named Affiliate) that, except as expressly stated in the Agreement, the Agreement does not grant the Customer (or any Named Affiliate) any rights to, or in, the Services or Documentation.

Customer Materials

8.2  The Customer (and each applicable Named Affiliate) shall retain ownership of all rights, title and interest, including Intellectual Property Rights, in and to the Customer Materials.

8.3 The Customer hereby grants Cox (and shall procure that each Named Affiliate shall grant Cox) a worldwide, non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials during the Term for the purpose of:

8.3.1 providing the Services and Documentation to the Customer (or the relevant Named Affiliate) in accordance with the Agreement;

8.3.2 (in relation to Customer Data) research and development in order to improve the Services (and any other products or services developed by Cox from time to time); and

8.3.3 (in relation to Customer Data) analysing the use and performance of Cox’s products and services and trends associated with the use of the Services (and any other products or services developed by Cox from time to time).

8.4 Cox shall be entitled to sub-licence the rights granted under clause 8.3 to its sub-contractors.

8.5 Cox shall be entitled to monitor, access, use for its own purposes and commercially exploit all data generated by usage of the Services (including anonymised statistics in relation to the Authorised Users use of the Services), subject to its obligations under clauses 9 and 10.

Assignment of rights

8.6 Where either party acquires, by operation of law, any rights, title and/or interest, including Intellectual Property Rights that is inconsistent with the allocation of title set out in clauses 8.1 or 8.2 (as applicable), it shall assign in writing such rights, title and/or interest, including Intellectual Property Rights, as it has acquired to the other party on the request of the other party (whenever made) without further consideration and such assignment shall also be an assignment (in respect of any copyright existing therein) of future copyright pursuant to section 91 of the Copyright, Designs and Patents Act 1988 or equivalent provision in any relevant jurisdiction. Where applicable as part of this process, the assigning party shall ensure that a waiver of applicable moral rights is obtained. The assigning party shall give the assignee party (and/or the assignee party’s designees) all reasonable assistance, and shall execute all documents, necessary to perfect, preserve, enforce, defend, register or record any such rights, title and/or interest, including Intellectual Property Rights.

  1. DATA PROTECTION

                    Where the parties are separate controllers

9.1 This clause 9.1 applies to the Agreement where the parties are identified as separate controllers in the Order. In such circumstances:

9.1.1 Cox and the Customer acknowledge and agree that they are each a separate controller in respect of any personal data which each processes for the identified controller activities in the Order;

9.1.2 each of Cox and the Customer shall, and shall procure that its employees and agents shall, comply with DP Legislation when it processes personal data in connection with the Agreement; and

9.1.3 the provisions contained in clauses 9.3 to 9.18 (inclusive) below shall not apply to the Agreement, except and only to the extent that Cox is also identified as a processor in respect of separate processor activities in the Order.

9.2 In the event that the Customer is located in the European Economic Area, and transfers personal data under the Agreement to Cox on or after the date on which the United Kingdom ceases to be treated by the European Union as though it were a member state in accordance with the terms of any withdrawal agreement which is in force between the United Kingdom and the European Union, Cox agrees to comply with the obligations of a data importer as set out in the Standard Contractual Clauses for the transfer of personal data to data processors established in third countries adopted by the European Commission decision of 27 December 2004, published under document number C(2004) 5271 2004/915/EU (the “Controller Standard Contractual Clauses”) unless and until the European Commission issues a valid adequacy decision in respect of the United Kingdom. Cox acknowledges that the Customer will be a data exporter. In particular, and without limiting the above obligation:

9.2.1 Cox agrees that its obligations under the Controller Standard Contractual Clauses shall be governed by the law of the Member State in which the Customer is established;

9.2.2 the details of the appendices applicable to the Controller Standard Contractual Clauses are as set out in the Order; and

9.2.3 in the event that the Customer gives its consent to Cox transferring personal data outside the European Economic Area and a relevant European Commission decision or other valid adequacy decision under applicable DP Legislation on which the Customer has relied in authorising the data transfer is held to be invalid, or that any supervisory authority requires transfers of personal data made pursuant to such decision to be suspended, then the parties agree to discuss in good faith and facilitate use of an alternative transfer mechanism.

Where Cox is a processor

9.3 Clauses 9.3 to 9.18 (inclusive) apply to the Agreement where Cox is identified as a processor in the Order. In such circumstances:

9.3.1  the parties agree that the Customer is the controller and Cox is the processor in relation to the personal data that Cox processes in the course of providing the Services;

9.3.2 the provisions contained in clauses 9.4 to 9.18 (inclusive) below shall apply to the personal data Cox processes in the course of providing the Services; and

9.3.3 the provisions contained in clause 9.1 and 9.2 above shall not apply to the Agreement, except and only to the extent that Cox is also identified as a controller in respect of separate controller activities in the Order.

9.4 The subject-matter of the data processing is the performance of the Services. The obligations and rights of the Customer are as set out in the Agreement. The Order sets out the nature, duration and purpose of the processing, the types of personal data Cox  processes and the categories of data subjects whose personal data is processed.

9.5 When Cox processes personal data in the course of providing the Services, Cox shall process the personal data only:

9.5.1 in accordance with documented instructions from the Customer (which may be specific instructions or instructions of a general nature as set out in the Agreement or as agreed by the parties from time to time); and/or

9.5.2 where (and to the extent) it is required to process the personal data for any other purpose under any Applicable Law to which Cox is subject, in which case Cox shall inform the Customer of this requirement first unless prohibited by Applicable Law.

9.6 Cox shall notify the Customer immediately if, in Cox’s reasonable opinion, an instruction for the processing of personal data given by the Customer infringes applicable DP Legislation, it being acknowledged that Cox shall not be obliged to undertake additional work or screening to determine if the Customer’s instructions are compliant.

9.7  Cox shall ensure that personnel required to access the personal data are subject to a binding duty of confidentiality in respect of such personal data.

9.8 Cox shall assist the Customer, always taking into account the nature of the processing:

9.8.1 by appropriate technical and organisational measures and in so far as is possible, in fulfilling the Customer’s obligations to respond to requests from data subjects exercising their rights;

9.8.2 in ensuring compliance with the obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the information available to Cox; and

9.8.3 by making available to the Customer all information which the Customer reasonably requests to allow the Customer to demonstrate that the obligations set out in Article 28 of the GDPR relating to the appointment of processors have been met.

9.9 To the extent that assistance under clause 9.8 is not included within the Services, Cox may charge a reasonable fee for any such assistance, save where assistance was required directly as a result of Cox’s own acts or omissions, in which case such assistance will be at Cox’s expense.

9.10 Cox shall implement and maintain appropriate technical and organisational measures to protect the personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful processing, accidental loss, destruction, damage or theft of the personal data and having regard to the nature of the personal data which is to be protected.

9.11 In the event of a Security Breach, Cox shall:

9.11.1 take action to investigate the Security Breach and to identify, prevent and mitigate the effects of the Security Breach; and

9.11.2 notify the Customer without undue delay.

9.12 Subject to clause 9.13 and 9.18, Cox shall not give access to or transfer any personal data to any third party (including any Affiliates) without the prior written consent of the Customer.

9.13 The Customer acknowledges that Cox may engage third party subcontractors for the purposes of processing personal data under the Agreement. The Customer hereby consents to the third party subcontractors listed on the Modix’s website (www.modix.eu). Cox can at any time appoint new subcontractors, which Cox shall list on a no less than quarterly basis on Modix’s website (www.modix.eu). Should the Customer wish to object to the appointment of a new subcontractor, the Customer shall contact Cox at dataprotection@coxauto.co.uk no later than 30 days after the publication of the updated list. The Customer shall provide Cox, in any objection, details of the nature of its objection to the new subcontractor and the Services this affects.  If the Customer objects, on reasonable grounds related to data protection, to the appointment of a new subcontractor within such timeframe and Cox nevertheless elects to use such subcontractor to deliver the Services, the Customer may terminate the Agreement by providing written notice to Cox. Where Cox engages any subcontractor to carry out any part of the Services involving the processing of personal data, it shall have in place a contract including clauses necessary and sufficient to comply with applicable DP Legislation which are substantively equivalent to those in clauses 9.3 to 9.18 (inclusive). For the avoidance of doubt, where a third party fails to fulfil its obligations under any sub-processing agreement, Cox shall remain fully liable to the Customer for the fulfilment of Cox’s obligations under these terms.

9.14 Cox shall allow the Customer and its respective auditors or authorised agents to conduct audits or inspections during the Term and provide all reasonable assistance in order to assist the Customer in exercising its audit rights under this clause 9.14 with the scope and timing of any on-site inspection to be agreed in advance by the parties in good faith, with such inspection to occur no more than once per calendar year (except where there is reasonable suspicion that Cox is in breach of the terms of this clause 9). If the Customer’s request for information or access relates to a subcontractor, or information held by a subcontractor which Cox cannot provide to the Customer itself, Cox shall promptly submit a request for additional information in writing to the relevant subcontractor(s). The Customer acknowledges that access to the subcontractor’s premises or to information about the subcontractor’s previous independent audit reports is subject to agreement from the relevant subcontractor, and that Cox cannot guarantee access to that subcontractor’s premises or audit information at any particular time, or at all. The purposes of an audit pursuant to this clause include verifying that Cox and its subcontractors are processing personal data in accordance with the obligations under clauses 9.3 to 9.18 (inclusive). In the event of any audit under this clause 9.14, Cox shall be entitled to withhold access to any records containing confidential information pertaining to other customers of Cox, and the Customer shall bear the reasonable costs of Cox incurred in facilitating the audit unless the audit reveals Cox to be in breach of this clause 9.

9.15 Cox will be authorised to transfer personal data outside of the UK or European Economic Area where it is reasonably necessary in order to provide the Services. Where Cox makes such transfers it will do so only where an adequacy decision or another valid method under applicable DP Legislation is in place.  Customer authorises Cox to enter into the Standard Contractual Clauses on its behalf for the transfer of personal data to data processors established in third countries adopted by the European Commission decision of 5 February 2010, published under document number C(2010) 593 2010/87/EU (the “Processor Standard Contractual Clauses”) or under any replacement mechanism authorised under applicable law, for the transfer of data to Cox Automotive, Inc. or any other third subcontractor named in the Order, as necessary to ensure adequate protection of personal data. The details of the appendices applicable to the Processor Standard Contractual Clauses are as set out in the Order.

9.16 In the event that the Customer is located in the European Economic Area, and transfers personal data under the Agreement to Cox on or after the date on which the United Kingdom ceases to be treated by the European Union as though it were a member state in accordance with the terms of any withdrawal agreement which is in force between the United Kingdom and the European Union, Cox agrees to comply with the obligations of a data importer as set out in the Processor Standard Contractual Clauses unless and until the European Commission issues a valid adequacy decision in respect of the United Kingdom. Cox acknowledges that the Customer will be a data exporter. In particular, and without limiting the above obligation:

9.16.1 Cox agrees to grant third party beneficiary rights to data subjects, as set out in clause 3 of the Processor Standard Contractual Clauses, provided that Cox’s liability shall be limited to its own processing operations;

9.16.2 Cox agrees that its obligations under the Processor Standard Contractual Clauses shall be governed by the law of the Member State in which the Customer is established;

9.16.3 the parties agree that the aggregate liability of Cox to the Customer under or in connection with the Agreement and the Processor Standard Contractual Clauses shall be limited as set out in clause 12;

9.16.4 the parties agree that for the purposes of clauses 5(h) and 11 of the Processor Standard Contractual Clauses, the Customer consents to Cox subcontracting processing operations in accordance with the provisions set out at clause 9.13 above;

9.16.5 the parties agree that any rights to audit, pursuant to clauses 5(f) and 12(2) of the Processor Standard Contractual Clauses, will be exercised in accordance with clause 9.14 above.

9.16.6 the parties agree that in the event of any conflict between the Agreement and the Processor Standard Contractual Clauses, the Processor Standard Contractual Clauses shall prevail; and

9.16.7 the details of the appendices applicable to the Processor Standard Contractual Clauses are as set out in the Order.

9.17 In the event that the Customer gives its consent to Cox transferring personal data outside the European Economic Area and a relevant European Commission decision or other valid adequacy decision under applicable DP Legislation on which the Customer has relied in authorising the data transfer is held to be invalid, or that any supervisory authority requires transfers of personal data made pursuant to such decision to be suspended, then the parties agree to discuss in good faith and facilitate use of an alternative transfer mechanism.

9.18 On termination of the Agreement for any reason, Cox shall make such personal data available to the Customer for extraction for a period of thirty (30) days following the date of termination. Following the end of such period, Cox shall delete such personal data (including all existing copies) except and to the extent that Applicable Law requires storage of such personal data.

  1. CONFIDENTIALITY

10.1 The Recipient Party shall:

10.1.1 keep all Confidential Information secret;

10.1.2 not disclose Confidential Information to any person except with the prior written consent of the Disclosing Party or in accordance with clauses ‎10.2 or ‎10.3; and

10.1.3 only use or make Copies of Confidential Information in connection with, and to the extent necessary for the purposes of, the Agreement.

10.2 The Recipient Party may disclose Confidential Information to any Authorised Persons on a “need-to-know” basis solely in relation to the Agreement, provided that the Recipient Party ensures that such Confidential Information is kept confidential by the applicable Authorised Persons.

10.3 The Recipient Party may disclose any Confidential Information to any regulator, law enforcement agency or other third party if it is required to do so by law, regulation, or similar authority. In those circumstances:

10.3.1 the Recipient Party shall (provided that it is practical and lawful to do so) notify the Disclosing Party in writing as soon as practicable before the disclosure referred to in this clause ‎10.3;

10.3.2 the parties shall use all reasonable endeavours to consult with each other with a view to agreeing the timing, manner and extent of the disclosure referred to in this clause ‎10.3; and

10.3.3 the Recipient Party must in any event use all reasonable endeavours to obtain written confidentiality undertakings in its favour from the third party.

10.4 If the Recipient Party is unable to inform the Disclosing Party before Confidential Information is disclosed, it shall (provided that it is lawful to do so) fully inform the Disclosing Party immediately afterwards in writing of the circumstances of the disclosure and the Confidential Information that has been disclosed.

10.5 All Confidential Information shall remain the property of the Disclosing Party and the Disclosing Party reserves all rights (including Intellectual Property Rights) in its Confidential Information. Nothing in the Agreement, or the disclosures envisaged by the Agreement, shall (except as expressly set out in the Agreement) operate to transfer, or operate as a grant of any licences or right to use, any Intellectual Property Rights in the Confidential Information.

10.6 The parties agree that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this clause 10. Accordingly, either party may, without proof of special damages, seek an injunction or other interim remedy for any threatened or actual breach of this clause 10.

  1. INDEMNITIES

11.1 Cox shall defend the Customer against any IPR Claim and shall indemnify the Customer for any amounts finally awarded against the Customer in judgment or settlement of an IPR Claim, provided that:

11.1.1 the Customer notifies Cox within fourteen (14) days of becoming aware of any such IPR Claim;

11.1.2 the Customer does not admit any liability or agree to any settlement or compromise of such IPR Claim without Cox’s prior written consent;

11.1.3 Cox is given exclusive conduct of such IPR Claim (which shall include, but not be limited to, the exclusive right to conduct any proceedings or action, negotiate the settlement of such IPR Claim and to conduct all discussions and dispute resolution efforts in connection with such IPR Claim);

11.1.4 the Customer, at Cox’s request, cost and expense, gives Cox (and procures that any applicable Named Affiliate gives Cox) all reasonable assistance and cooperation in connection with the conduct of such IPR Claim; and

11.1.5 the Customer takes all reasonable steps (and procures that any applicable Named Affiliate takes all reasonable steps) to mitigate any liabilities which are the subject of the indemnity in this clause 11.1.

11.2 If any IPR Claim is made, or in Cox’s reasonable opinion is likely to be made, against the Customer or any Named Affiliate, Cox may at its option and expense:

11.2.1 obtain for the Customer the right to continue providing access to and use of the Services and/or Documentation in the manner permitted under the Agreement;

11.2.2 modify or replace the infringing part of the Services and/or Documentation (as applicable) so as to avoid the infringement or alleged infringement; and

11.2.3 terminate the Agreement and refund Charges paid in advance by the Customer in respect of any period following the effective date of such termination.

11.3 The indemnity in clause 11.1 shall not apply to any IPR Claim which arises from or in connection with:

11.3.1 any changes, modifications, updates or enhancements made to the Services and/or Documentation other than by or on behalf of Cox;

11.3.2 the access to or use of the Services and/or Documentation in combination with any other items, materials hardware and/or software that are not provided by or on behalf of Cox; and/or

11.3.3 Cox complying with the Customer’s (or any Named Affiliate’s) instructions.

11.4 The provisions of clauses 11.1 to 11.3 inclusive state the entire liability of Cox to the Customer in connection with an IPR Claim and shall be the Customer’s sole and exclusive remedy for any alleged or actual infringement of Intellectual Property Rights arising under or in connection with the Agreement.

11.5 The Customer shall, at all times during and after the Term, indemnify Cox and keep Cox indemnified against all Losses arising out of or in connection with:

11.5.1 any access to or use of the Services and/or Documentation by the Customer, any Named Affiliate and/or any Authorised User in breach of the Agreement, the Acceptable Use Policy and/or the End User Terms (as applicable); and/or

11.5.2 any Claims made or brought against Cox by a third party that the Customer Materials infringe the rights, title or interest (including Intellectual Property Rights) of a third party.

  1. LIMITATION OF LIABILITY

12.1 Nothing in the Agreement shall operate so as to exclude or limit the liability of either party to the other for fraud, death or personal injury arising out of negligence or any other liability which cannot be excluded or limited by Applicable Law.

12.2 Subject to clause 12.1, Cox shall not be liable to the Customer for any of the following types of loss arising under or in relation to the Agreement, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), under any indemnity and/or for breach of statutory duty:

12.2.1 any loss of profits, business, contracts, anticipated savings, other economic advantage, loss of use or corruption of software, data or information, loss of goodwill or loss of revenue, whether direct or indirect;

12.2.2  any indirect or consequential Loss whatsoever;

12.2.3 any Loss arising from or in connection with suspension of the Customer’s right to permit the Authorised Users to access and use the Services (and/or suspension of access of any or all Authorised Users to the Services) in accordance with clause 14.4;

12.2.4 any Loss arising out of or in connection with Cox acting in accordance with the Customer’s instructions or in reliance upon any Customer Materials or other information provided by or on behalf of the Customer; or

12.2.5 any Loss arising from or in connection with Claims made by third parties (including Named Affiliates and/or Authorised Users) against the Customer (save for IPR Claims which shall be addressed in accordance with clauses 11.1 to 11.4 (inclusive)),

even if Cox was advised in advance of the possibility of such Loss.

12.3 Subject to clauses 12.1 and 12.2, the total aggregate liability of Cox under or in relation to the Agreement, including liability for breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), under any indemnity and/or any breach of statutory duty, shall not exceed 100% of the Charges paid by the Customer in the Minimum Subscription Term.

12.4 Subject to clause 12.1, the Customer agrees that before bringing a claim against Cox, the Customer shall use its best endeavours to recover Losses incurred by it from its insurer instead of Cox and to the extent that it is successful in recovering such sums from its insurers Cox shall not be liable to the Customer.

  1. TERM

13.1 The Agreement shall commence on the date of the Order and shall continue until the end of the Minimum Subscription Term, unless terminated in accordance with its terms. The Minimum Subscription Term shall commence on the date specified in the Order (or if no such date is specified, the date of the Order).

13.2 Unless provided otherwise in the Order, the Agreement shall automatically renew for successive one (1) year periods (each a “Renewal Subscription Term”) at the end of its Minimum Subscription Term and at the end of each Renewal Subscription Term, unless either party provides written notice of non-renewal to the other party at least three (3) months before expiration of the Minimum Subscription Term or the applicable Renewal Subscription Term.

  1. TERMINATION AND SUSPENSION

14.1 Either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

14.1.1 the other party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;

14.1.2 an Insolvency Event occurs in relation to the other party.

14.2 Cox may terminate the Agreement with immediate effect by giving written notice to the Customer if:

14.2.1 the Customer fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than fifteen (15) days after being notified in writing to make such payment;

14.2.2 the Customer at any time cancels its direct debit instructions without arranging an alternative direct debit mandate;

14.2.3 the Customer’s financial standing deteriorates to such an extent that in Cox’s opinion the Customer’s capability to comply with its obligations under the Agreement has been placed in jeopardy; and/or

14.2.4 Cox ceases to have the rights, licences, consents and/or approvals to grant any of the rights that it grants under the Agreement.

14.3 Cox may terminate this Agreement for convenience at any time by giving no less than thirty (30) days’ notice to the Customer. In the event of termination for convenience pursuant to this clause 14.3, Cox shall refund the Customer any Charges paid in advance that relate to the period post the date of termination (if any).

14.4 Cox may suspend the Customer’s right to permit the Authorised Users to access and use the Services (and may suspend the access of any or all Authorised Users to the Services) immediately upon notice to the Customer:

14.4.1 if it determines (acting reasonably) that any Authorised User’s access to or use of the Services poses a security risk to Cox, the Services or any third party, may subject Cox or any third party to any liability and/or may be fraudulent;

14.4.2 if the Customer fails to pay any amount due under the Agreement on the due date for payment;

14.4.3 if Cox is entitled to terminate the Agreement in accordance with its terms (other than as a result of clause 14.3);

14.4.4 if the Customer (or any Named Affiliate) is in breach of the Agreement or any other agreement which licenses software being used on or in conjunction with the Services; or

14.4.5 where required to comply with Applicable Law.

14.5 Cox shall reinstate access to the Services promptly once Cox has established the cause of the suspension has been remedied or ceased to exist. A charge may be imposed to reimburse Cox’s reasonable costs where suspension was not caused by Cox.

  1. CONSEQUENCES OF TERMINATION

15.1 On termination of the Agreement for any reason:

15.1.1 subject to clause 9.18 (if applicable and strictly to the extent that access is envisaged under such clause), the Customer shall (and shall procure that all Named Affiliates and Authorised Users shall) immediately cease access to and use of the Services and Documentation;

15.1.2 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination, shall not be affected or prejudiced; and

15.1.3 clauses 2, 7, 8, 9, 10, 11, 12, 15, 17, 18, 19, 20and 21 and other provisions which are necessary for the interpretation or enforcement of the Agreement shall continue in force.

  1. FORCE MAJEURE

16.1 Cox shall not be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under or in connection the Agreement if such delay or failure results from a Force Majeure Event.

16.2 Cox may terminate the Agreement by written notice to the Customer with immediate effect if a Force Majeure Event is continuing or its consequence remains such that either party is unable to comply with all or a material part of its obligations under the Agreement for a period of more than thirty (30) consecutive days.

  1. NOTICES

17.1 Where any provision of the Agreement refers to a party notifying, or otherwise providing a notice to, the other party (the associated notice being a “Notice”), any such Notice shall be in writing, addressed to the specified recipient at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing, and either delivered by hand, by pre-paid first class post or other next day delivery service, by commercial courier or by email.

17.2 Any Notice complying with this clause 17 will be deemed to have been received by the addressee:

17.2.1 if delivered by hand, on the day of delivery if delivered by 17:30 hours on any Business Day and otherwise at 09.30 hours on the next Business Day;

17.2.2 if delivered by pre-paid first class post or other next day delivery service, two (2) Business Days after delivery into the custody of the postal authorities;

17.2.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; and/or

17.2.4 if sent by e-mail, one (1) Business Day after transmission.

17.3 This clause 17 shall not apply to the service of any proceedings or other documents in any legal action.

  1. THIRD PARTY RIGHTS

18.1 A person who is not a party to the Agreement may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.

18.2 The right of the parties to terminate, rescind or agree any variation, waiver or settlement relating to the Agreement is not subject to the consent of any person that is not a party to the Agreement.

  1. ENTIRE AGREEMENT

19.1 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all agreements, arrangements, promises, undertakings, proposals, warranties, representations and understandings between them at any time before their respective signature (“Pre-Contractual Statements”), whether written or oral, relating to its subject matter.

19.2 Each party acknowledges that in entering into the Agreement it does not rely on any Pre-Contractual Statement made by or on behalf of the other party (whether made innocently or negligently) in relation to the subject matter of the Agreement, other than those which are set out expressly in the Agreement.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on, and hereby waives all rights and remedies which might otherwise be available to it in relation to, any Pre-Contractual Statement.

19.4 Nothing in this clause 19 shall limit or exclude the liability of either party arising out of any pre-contractual fraudulent misrepresentation or fraudulent concealment.

  1. GENERAL

20.1 The Customer shall not assign, novate, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement without Cox’s prior written consent.

20.2 Subject to clause 9.13 (where applicable), Cox may at any time assign, novate, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Agreement to any third party.

20.3 Nothing in the Agreement is intended to, or shall be deemed to, establish or constitute any partnership or joint venture between the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.

20.4 Cox has the right to vary these Service Use Terms from time to time without notice to the Customer. Any updates to these Service Use Terms shall be published through the Cox website referenced in the Order Form. The Customer shall check such Cox website regularly for updates to these Service Use Terms. Save as otherwise provided in these Service Use Terms (including in this clause 20.4), no variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20.5 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

20.6 A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

20.7 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 20.7 shall not affect the validity and enforceability of the rest of the Agreement.

20.8 Each party at its own cost agrees to do and execute and perform such further deeds, documents, assurances, acts and things as may be required to give effect to the terms, intent and purposes of the Agreement.

20.9 The rights, powers and remedies provided in the Agreement are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by Applicable Law or otherwise.

  1. GOVERNING LAW

21.1 The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by, and construed in accordance with the law of England and Wales.

21.2 Each party irrevocably agrees, for the sole benefit of Cox that, subject as provided below, the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation. Nothing in the Agreement shall limit the right of Cox to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

SECTION B – VARIATIONS TO STANDARD CONDITIONS WHERE CUSTOMER IS LOCATED IN ITALY

  1. Definition of insolvency event

1.1  The definition of ‘Insolvency Event’ in Section A shall be deleted in its entirety and replaced by the following:

Insolvency Event means the occurrence of any one or more of the following events in relation to the affected party: (a) that party becomes unable to pay its debts (within the meaning of – in the event the affected party is Cox –  section 123(1)(e) or (2) of the insolvency act 1986 or – in the event the affected party is the Customer – of the Applicable Law to the Customer), admits its inability to pay its debts or becomes insolvent; (b) a petition is presented for the liquidation (otherwise than for the purposes of a solvent amalgamation or reconstruction), administration, bankruptcy or dissolution of that party under the Applicable Law to the affected party; (c) a liquidator (also in case of voluntary liquidation) is appointed to that party and/or over all or any part of the assets of that party; (d) that party enters into or proposes any composition or arrangement concerning its debts with its creditors (or any class of its creditors) generally; or (e) anything equivalent to any of the events or circumstances listed in limbs (a) to (d) (inclusive) occurs in any applicable jurisdiction except, for the avoidance of doubt, any declaration of liquidation (other than voluntary), administration or bankruptcy, which are not included in the scope of this definition;

  1. INTEREST RATE ON THE OVERDUE AMOUNTS

2.1  Clause 7.5 of Section A shall be deleted in its entirety and replaced by the following:

7.5  Without prejudice to any other right or remedy that it may have, if the Customer fails to pay any amount due to Cox on the applicable due date the Customer shall pay interest on the overdue amount which are identified, to the maximum extent permitted under the Applicable Law, at the rate of 4% per annum above the National Westminster Bank’s base rate from time to time (or any other bank base right that Cox may choose from time to time). Such interest shall accrue on a daily basis from the date on which the amount became overdue until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

  1. Assignment of rights

3.1  Clause 8.6 of Section A shall be deleted in its entirety and replaced by the following:

8.6  Save for the moral rights to be recognized as inventor/author, where either party acquires, by operation of law, any rights, title and/or interest, including Intellectual Property Rights that is inconsistent with the allocation of title set out in clauses 8.1 or 8.2 (as applicable), it shall assign in writing such rights, title and/or interest, including Intellectual Property Rights, as it has acquired to the other party on the request of the other party (whenever made) without further consideration and such assignment shall also be an assignment (in respect of any copyright existing therein) of future copyright pursuant to section 91 of the Copyright, Designs and Patents Act 1988 or equivalent provision in any relevant jurisdiction. The assigning party shall give the assignee party (and/or the assignee party’s designees) all reasonable assistance, and shall execute all documents, necessary to perfect, preserve, enforce, defend, register or record any such rights, title and/or interest, including Intellectual Property Rights.

  1. CONFIDENTIALITY

4.1  The first sentence of Clause 10.1 of Section A shall be deleted in its entirety and replaced by the following:

During the Term and for 10 (ten) years after the termination of the Agreement for any reason (and in the case of trade secrets, until such time as Disclosing Party no longer treats such information as a trade secret according to article 2 of the EU Directive 943/2016), the Recipient Party shall:

  1. LIMITATION OF LIABILITY (CLAUSE 12.1)

5.1  Clause 12.1 of Section A shall be deleted in its entirety and replaced by the following:

12.1  Nothing in the Agreement shall operate so as to exclude or limit the liability of either party to the other for fraud, death, wilful misconduct or gross fault or personal injury arising out of negligence or any other liability which cannot be excluded or limited by Applicable Law.

SECTION C – VARIATIONS TO STANDARD CONDITIONS WHERE CUSTOMER IS LOCATED IN AUSTRIA

  1. ASSIGNMENT OF RIGHTS

1.1  Clause 8.6 of Section A shall be deleted in its entirety and replaced by the following:

8.6  Where either party acquires, by operation of law, any rights, title and/or interest, including Intellectual Property Rights that is inconsistent with the allocation of title set out in clauses 8.1 or 8.2 (as applicable), it shall assign in writing such rights, title and/or interest, including Intellectual Property Rights, or grant respective licenses to use copyright protected work as it has acquired to the other party on the request of the other party (whenever made) without further consideration and such assignment/grant of licenses shall also be an assignment/grant of licenses (in respect of any copyright existing therein) of future copyright pursuant to section 91 of the Copyright, Designs and Patents Act 1988 or equivalent provision in any relevant jurisdiction to the extent permissible under local law. The assigning party shall give the assignee party (and/or the assignee party’s designees) all reasonable assistance, and shall execute all documents, necessary to perfect, preserve, enforce, defend, register or record any such rights, title and/or interest, including Intellectual Property Rights.

  1. Termination and suspension

2.1  Clause 14.1.2 of Section A shall not apply.

  1. Limitation of Liability

3.1 Clause 12.1 of Section A shall be deleted in its entirety and replaced by the following:

“12.1 Nothing in the Agreement shall operate so as to exclude or limit the liability of either party to the other for fraud, death or personal injury, wilful misconduct or claims made under the Austrian Product Liability Act.”

SECTION D – VARIATIONS TO STANDARD CONDITIONS CUSTOMER IS LOCATED IN FRANCE

  1. Termination in case of AN insolvency EVENT

1.1 Clause 14.1.2 of Section A shall be deleted in its entirety and replaced by the following:

14.1.2 an Insolvency Event occurs in relation to the other party, and unless otherwise decided by the appointed administrator.”

SECTION E – VARIATIONS TO STANDARD CONDITIONS WHERE CUSTOMER IS LOCATED IN SPAIN

  1. STATUTORY LAW

1.1 In the event of any conflict between any statutory law in Spain applicable to the Customer and the terms and conditions of this Agreement, the applicable statutory law in Spain shall prevail.

  1. DEFINITION OF BUSINESS DAY

2.1  The definition of ‘Business Day’ shall be deleted in its entirety and replaced by the following:

Business Day means any day which is not a Saturday, Sunday or public holiday in Spain

  1. Assignment of Rights

3.1 Clause 8.6 shall be deleted in its entirety and replaced by the following:

8.6 here either party acquires, by operation of law, any rights, title and/or interest, including Intellectual Property Rights that is inconsistent with the allocation of title set out in clauses 8.1 or 8.2 (as applicable), it shall assign in writing such rights, title and/or interest, including Intellectual Property Rights, as it has acquired to the other party on the request of the other party (whenever made) without further consideration and such assignment shall also be an assignment (in respect of any copyright existing therein) of future copyright to the extent permitted by applicable law. The assigning party shall give the assignee party (and/or the assignee party’s designees) all reasonable assistance, and shall execute all documents, necessary to perfect, preserve, enforce, defend, register or record any such rights, title and/or interest, including Intellectual Property Rights.”