EMLy Co-pilot - Service Terms

1. Definitions

1.1 The definitions and rules of interpretation below apply in these Terms:

AI Technology: any machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.

Credits: the number of credits required to use EMLy to perform its functionality, as purchased by the Customer either and included as part of their subscription level or as a top-up to those subscription-Credit entitlements.

Customer Input: information, data, materials, text, prompts, images, or other content that is:

a) input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available by or on behalf of the Customer or any Authorised User for processing by or through EMLy, or

b) collected or otherwise received by EMLy for or on behalf of the Customer or any Authorised User.

Customer Output: information, data, materials, text, images, code, works, expressions, or other content generated or otherwise output from EMLy in response to Customer Input or from use of EMLy by or on behalf of the Customer or its Authorised Users.

Analytics Data: has the meaning given in clause 9.4.

API: (where agreed for a specific Customer as part of their Subscription plan) this is any application programming interface made available by Etcembly in connection with EMLy, or otherwise necessary to use, integrate, or interoperate with EMLy.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use EMLy and the Documentation, each of which shall be identified by the Customer on Etcembly’s written request to the Customer from time to time.

Business Day: a day other than a Saturday, Sunday or public holiday in England.

Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.1.

Customer Data: the Customer Inputs, Customer Outputs, Usage Data and all data inputted by the Customer, Authorised Users, or Etcembly on the Customer's behalf for the purpose of using EMLy or facilitating the Customer's use of EMLy and (except for the Analytics Data) any data generated by, or derived from the Customer's use of EMLy, whether hosted or stored within EMLy or elsewhere. Except for Analytics Data, as between the parties, all output, copies, reproductions, improvements, reports, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Customer Data shall be owned by the Customer.

Documentation: the EMLy document(s) and other materials made available to the Customer by Etcembly online via www.etcembly.io or such other web address notified by Etcembly to the Customer from time to time which sets out a functional description of EMLy and the user instructions for EMLy.

EMLy: Etcembly’s proprietary AI Technology for biologic research purposes, known as ‘EMLy Co-Pilot’, including all features, functionality or components of EMLy made available to the Customer through their subscription as described further on www.etcembly.io.

Etcembly means Etcembly Limited, incorporated in England and Wales with company number 12059749, whose registered office is at Atlas Building Fermi Avenue, Harwell Campus, Didcot, Oxfordshire, England, OX11 0QX, United Kingdom.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and rights in domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs and other professional costs and expenses).

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Permitted Use: means any use of EMLy by the Customer or any Authorised User solely for the Customer's internal business operations, including submitting Customer Input and receiving Customer Output from EMLy and use of any and all content (in any mode or format) as may result from the use of EMLy. Permitted use is only for the use of EMLy as a tool to assist in biologics discovery for a commercial user to use for research and development purposes. EMLy should not be used to input any Customer Input which is personal data under applicable privacy laws, including the UK Data Protection Act or EU GDPR.

Etcembly Materials: EMLy, Etcembly Systems, and Documentation, and, to the extent developed or acquired by Etcembly prior to the Effective Date or independently of the supply of EMLy to the Customer, any other information, data, documents, devices, know-how, methods, hardware, software, and other materials that are provided or used by Etcembly or any subcontractor in connection with EMLy or otherwise comprise or relate to EMLy or Etcembly Systems. For the avoidance of doubt, Etcembly Materials includes Analytics Data but does not include Customer Data or Customer Customisations.

Etcembly Systems: the information technology infrastructure used by or on behalf of Etcembly in creating and providing EMLy, including all computers, software, hardware, databases, models, AI Technology, electronic systems (including database management systems), and networks operated by or on behalf of Etcembly.

Software: the online software applications provided by Etcembly as part of EMLy.

Subscription Fees: the subscription fees payable by the Customer to Etcembly for the User Subscriptions for their level of subscription to use EMLy.

Subscription Term: means the subscription period that the Customer has purchased to use EMLy for.

Usage Data: any information reflecting the use of EMLy by or on behalf of the Customer or any Authorised User, including any end user profiles, session data, or metadata about the Customer's and its Authorised Users' access to or use of EMLy.

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use EMLy and the Documentation in accordance with these Terms.

Virus: 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.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.2 Clause headings shall not affect the interpretation of these Terms.

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

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

1.5 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms.

1.6 A reference to a statute or statutory provision includes all subordinate legislation made as at the date of these Terms under that statute or statutory provision.

1.7 References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.

2. User subscriptions

2.1 Etcembly hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit its Authorised Users during the Subscription Term to:

(a) use EMLy and the Documentation for the Permitted Use; and

(b) (where applicable) access and use any APIs which are provided by Etcembly as part of a Customer’s subscription.

2.2 The Customers acknowledges and understand that different functions within EMLy require different amounts of Credits. Once the number of Credits included within the Customer’s subscription expires, the Customer will need to purchase additional Credits until the next subscription-Credits are issued to the Customer under their subscription plan.

2.3 In relation to the Authorised Users, the Customer undertakes that:

(a) the maximum number of Authorised Users that it authorises to access and use EMLy and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;

(b) it will not allow any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User will no longer have any right to access or use EMLy and/or the Documentation;

(c) it shall, no more frequently than once per year, permit Etcembly or Etcembly's designated auditor to audit Customer’s use of EMLy to verify that the Customer's use of EMLy does not exceed the number of User Subscriptions purchased by the Customer;

(d) if the audit referred to in clause 2.3(b)) reveals that the Customer has underpaid Subscription Fees to Etcembly, then without prejudice to Etcembly's other rights, the Customer shall pay to Etcembly an amount equal to such underpayment as calculated in accordance with Etcembly’s current price list. Alternatively, Etcembly reserves the right to adjust the Customer’s available Credits to the same value.

2.4 The Customer shall not use EMLy to:

(a) distribute or transmit any Viruses or Vulnerability;

(b) store, access, publish, disseminate, distribute or transmit any material which:

(i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive;

(ii) facilitates illegal activity;

(iii) depicts sexually explicit images;

(iv) promotes unlawful violence;

(v) is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or

(vi) is otherwise illegal or causes damage or injury to any person or property;

and Etcembly reserves the right to disable the Customer's access to EMLy for the duration of time that the breach remains unremedied.

2.5 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:

(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of EMLy or the Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software, AI Technology or any other component of EMLy;

(b) use EMLy to train or create any other AI-based service or product;

(d) subject to clause 13.12, licence, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make EMLy and/or the Documentation available to any third party except the Customer’s Authorised Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to EMLy and/or the Documentation, other than as provided under this clause 2.

2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, its subscription to EMLy and/or the Documentation and, if there is any such unauthorised access or use, promptly notify Etcembly.

3. Additional user subscriptions

3.1 The Customer may, from time to time during the Subscription Term, request to purchase additional User Subscriptions in excess of the initial number purchased and where granted by Etcembly, Etcembly shall grant access to EMLy and the Documentation to such additional Authorised Users in accordance with these Terms.

4. EMLy

4.1 During the Subscription Term, Etcembly shall use commercially reasonable efforts to make EMLy available to the Customer’s Authorised Users 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during a normal maintenance window of 10.00 pm to 2.00 am UK time; and

(b) unscheduled maintenance performed outside Normal Business Hours, provided that Etcembly has used reasonable endeavours to give the Customer at least six Normal Business Hours' notice in advance.

4.2 Etcembly will, as part of EMLy and at no additional cost to the Customer, provide the Customer with Etcembly's standard customer support services during Normal Business Hours via the Etcembly support portal listed in the Documentation.

4.3 Etcembly shall host EMLy and process Customer Data using a secure data hosting facility.

4.4 Notwithstanding anything to the contrary in these Terms, EMLy, including all processing of Customer Data by or on behalf of Etcembly, shall be provided solely from within and on Etcembly Systems located in the UK or EEA.

5. Privacy

5.1 The Customer acknowledges that EMLy is not designed to process or store any personal data or other identifiable data relating to a living individual (Personal Data) except for registration details of the Customer and its Authorised Users.

5.2 The Customer represents and warrants that no Customer Input shall comprise Personal Data. The Customer shall not use EMLy to upload, process, store or generate any Personal Data.

6. Etcembly's obligations

6.1 Etcembly shall use reasonable skill and care to provide EMLy to the Customer substantially in accordance with these Terms and the Documentation.

6.2 Etcembly's obligations at clause 6.1 shall not apply to the extent of any non-conformance that is caused by use of EMLy contrary to Etcembly's instructions or the Documentation, or modification or alteration of EMLy by any party other than Etcembly or Etcembly's duly authorised contractors or agents.

6.3 Etcembly does not warrant that the Customer's use of EMLy will be uninterrupted or error-free and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that EMLy and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.4 Etcembly warrants and undertakes that:

(a) it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms and for the provision of its EMLy service to the Customer;

(b) it will comply with all laws and regulations applicable to Etcembly or its provision of EMLy under these Terms and shall promptly notify the Customer in writing if it becomes aware of any material changes in any applicable law or regulation that would prevent Etcembly from complying with its material obligations under these Terms;

6.5 Except for the express warranties in these Terms, each party hereby disclaims all warranties, whether express, implied, statutory, or otherwise, under or in connection with these Terms.

7. Customer's obligations

7.1 The Customer shall:

(a) provide Etcembly with:

(i) all necessary co-operation in relation to these Terms; and

(ii) all necessary access to such information as may be required by Etcembly in order to provide EMLy;

(b) without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms; and

7.2 The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

7.3 The Customer shall indemnify, defend, and hold harmless Etcembly and its officers, directors, employees, agents, contractors, permitted successors, and permitted assigns (each, an Etcembly Indemnitee) from and against all Losses incurred by an Etcembly Indemnitee resulting from any Claim by a third party to the extent that such Losses arise or are alleged to arise out of or result from:

(a) any claim that any Customer Data is unlawful or infringes, misappropriates, or otherwise violates such third party's Intellectual Property Rights, provided, however, that the Customer shall have no liability or obligation with respect to any claim or losses to the extent that such claim or losses arise out of or result from:

(i) Etcembly's breach of these Terms;

(ii) any unauthorised access to or use, disclosure, or other processing of Customer Data by or on behalf of Etcembly, or through or enabled by Etcembly Systems (whether authorised by Etcembly, due to a Security Breach, or otherwise);

(iii) any use of Customer Data other than by: (a) the Customer or its Authorised Users, or (b) Etcembly in its performance of EMLy solely for the benefit of the Customer strictly in accordance with these Terms; and

(b) any use of EMLy by Customer or any Authorised User that materially violates these Terms.

8. Charges and payment

8.1 The Customer shall pay the Subscription Fees to Etcembly for the User Subscriptions. Subscription Fees entitle the Customer to a certain level of Credits to use EMLy. Additional Credits may be purchased at any time by the Customer. Unused Credits at the end of the Subscription Term shall be lost and no refunds shall be due to the Customer for unused Credits.

8.2 Etcembly shall be entitled to increase the Subscription Fees from time to time, but this shall not affect the Customer during their current Subscription Term.

9. Proprietary rights

9.1 As between Etcembly and the Customer, Etcembly acknowledges and agrees that the Customer owns all Intellectual Property Rights in the Customer Data, subject to the licence granted in clause 9.2. Except as expressly stated in these Terms, these Terms do not grant Etcembly any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Customer Data.

9.2 Subject to the terms and conditions of these Terms, the Customer hereby grants to Etcembly a limited, royalty-free, fully-paid up, non-exclusive, transferable, and sublicensable licence to use the Customer Data solely as necessary to provide EMLy for the Customer's benefit as provided in these Terms for so long as the Customer or any Authorised User uploads or stores the Customer Data for use by or on behalf of Etcembly on Etcembly Systems.

9.3 Etcembly shall not combine or commingle Customer Data with data or information of Etcembly or any third party, and shall logically segregate and isolate Customer Data from all such Etcembly and third-party data.

9.4 Etcembly shall not use, or permit any person to use, Customer Data or any other Confidential Information of the Customer to train, retrain, tune, validate, modify, update, or otherwise improve EMLy, or any other product or service, except that Etcembly may use Customer Input and Customer Output, as-is with no warranties whatsoever by the Customer only in an aggregate and/or anonymised manner to train, retrain, tune, validate, modify, update, or otherwise improve EMLy.

9.5 Notwithstanding anything to the contrary in these Terms, Etcembly may monitor the Customer's use of EMLy and collect and use Usage Data only in an aggregate manner solely to compile statistical and performance information related to the provision and operation of EMLy (Analytics Data). For the avoidance of doubt, Analytics Data shall be owned by Etcembly.

9.6 The Customer acknowledges and agrees that, as between the parties, Etcembly owns all Intellectual Property Rights in EMLy and the Etcembly Materials.

9.7 Except for the limited license(s) expressly provided in these Terms:

(a) nothing contained in these Terms shall be construed as granting Etcembly or any third party any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Customer Data; and

(b) nothing contained in these Terms shall be construed as granting the Customer or any third party any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of Etcembly Materials.

10. Confidentiality

10.1 Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party, including but not limited to any information that would be regarded as confidential by a reasonable business person relating to:

(a) the business, assets, affairs, customers, clients, providers, intentions, or market opportunities of the disclosing party; or

(b) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party.

Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

10.2 Without limiting clause 10.1:

(a) all Customer Data is the Confidential Information of the Customer; and

(b) Etcembly Materials are the Confidential Information of Etcembly.

10.3 The provisions of this clause 10 shall not apply to any Confidential Information that:

(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);

(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;

(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;

(d) the parties agree in writing is not confidential or may be disclosed; or

(e) is developed by or for the receiving party independently of the information disclosed by the disclosing party.

10.4 Notwithstanding the provisions of clause 10.3 or any other provisions of these Terms, none of the exclusions set out in clause 10.3 apply to any Customer Data, whether provided by or on behalf of the Customer to Etcembly or EMLy for use or generated or derived from such use and regardless of whether that Customer Data may be publicly available or otherwise.

10.5 Each party shall keep the other party's Confidential Information secret and confidential and shall not:

(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with these Terms (Permitted Purpose); or

(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 10.

10.6 A party may disclose the other party's Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:

(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and

(b) at all times, it is responsible for such Representatives' compliance with the confidentiality obligations set out in this clause 10.

10.7 A party may disclose Confidential Information to the extent that such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority (including, without limitation, by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of the disclosure as possible).

10.8 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.

10.9 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party's Confidential Information other than those expressly stated in these Terms are granted to the other party, or to be implied from these Terms.

10.10 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, by any governmental or regulatory authority (including, without limitation, any relevant securities exchange), by any court or other authority of competent jurisdiction.

10.11 Except as expressly stated in these Terms, no party makes any express or implied warranty or representation concerning its Confidential Information.

10.12 The above provisions of this clause 10 shall survive for a period of five years from termination of the Customer’s EMLy subscription.

11. Limitation of liability

11.1 The following definitions apply in this clause 11:

(a) liability: every kind of liability arising under or in connection with these Terms including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise; and

(b) default: any act or omission resulting in one party incurring liability to the other.

11.2 Except as expressly and specifically provided in these Terms, the Customer assumes sole responsibility for results obtained from the use of EMLy and the Documentation by the Customer, and for conclusions drawn from such use.

11.3 Nothing in these Terms excludes the liability of Etcembly:

(a) for death or personal injury caused by Etcembly's negligence; or

(b) for fraud or fraudulent misrepresentation.

11.4 Subject to clause 11.2 and clause 11.3, Etcembly shall have no liability for any special, consequential, incidental, punitive, or indirect damages of any kind from or in connection with these Terms or the provision of EMLy, regardless of any notice of the possibility of such damages and regardless of the theory of liability; and

12. Term and termination

12.1 These Terms shall, unless otherwise terminated as provided in this clause 12.1, commence at the start of a Subscription Term and shall continue until the expiry of that Subscription Term.

12.2 The Customer may terminate its subscription at any time on no less than 30 days prior written notice to Etcembly, however Etcembly shall not be obliged to refund to the Customer any amounts paid by the Customer as at the date of termination.

12.3 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

(b) the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified to do so;

(c) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986; or (being an individual) is deemed either unable to pay their debts or as having no reasonable prospect of doing so, in either case, within the meaning of section 268 of the Insolvency Act 1986; or (being a partnership) has any partner to whom any of the foregoing apply;

(d) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);

(h) the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3(c) to clause 12.3(j) (inclusive); or

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.4 On termination of these Terms for any reason:

(a) all licences granted to the Customer under these Terms shall terminate and the Customer shall cease all use of Etcembly Materials.

(b) On termination, Etcembly shall be at liberty to delete any Customer Data or other Confidential Information of the Customer in its possession or control and shall not be obliged to store any of it;

(c) 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.

13. General

13.1 Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control.

13.2 If there is an inconsistency between any of the provisions in the main body of these Terms and a separate signed subscription agreement of the Customer, that signed subscription agreement shall prevail.

13.3 No variation of these Terms shall be effective unless it is approved by Etcembly and issued to the Customer either through EMLy or by email.

13.4 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

13.5 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

13.6 No failure or delay by a party to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

13.7 If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.

13.8 If any provision or part-provision of these Terms is deemed deleted under clause 13.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

13.9 These Terms constitute the entire agreement between the parties and supersede and extinguish all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to their subject matter.

13.10 Each party acknowledges that in entering into these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.

13.11 Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms or the Documentation.

13.12 The Customer shall not, without the prior written consent of Etcembly, assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under these Terms.

13.13 Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

13.14 These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

13.15 Any notice given to a party under or in connection with these Terms shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):

(i) Etcembly: hello@etcembly.io

(ii) Customer: the email account used to register as the primary Authorised User for the Customer.

Any notice shall be deemed to have been received on proof of delivery (which in the case of emails shall be at the time of transmission provided that no delivery failure is sent by the recipient’s IT system). This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

13.16 These Terms and any dispute or claim arising out of or in connection with them or their subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

13.17 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).

Please read these terms and conditions (“Terms”) carefully. Unless governed by a separate written master services agreement, all EMLy subscription agreements that Etcembly may enter into from time to time for the provision of EMLy shall be governed by these Terms.