BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES HEREIN, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY NUMERIX SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
IF YOU ARE USING ANY NUMERIX SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
These Master Services Agreement Legal Terms (“Agreement”) are entered into by and between Numerix (see Section 1 for this and other capitalized defined terms) and the entity or person placing an order for, or accessing, any Numerix Services (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any ancillary documents (e.g., attachments, addenda, exhibits) expressly referenced as part of the Agreement, and any Order Forms that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Numerix Services (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement: From time to time, Numerix may modify this Agreement. Unless otherwise specified by Numerix, changes become effective for Customer upon renewal of the then-current Subscription Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Numerix will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or upon the effective date of a new Order Form, and in any event continued use of any Numerix Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this Section apply in this Agreement.
“Acceptance Criteria” means, in respect of a Relevant Deliverable, the specific acceptance criteria expressly set out in the relevant column of the Order Form.
“Additional Work” means any additional services provided by or on behalf of Numerix to the Customer that is not expressly set out within the scope of an appropriate Order Form at the time.
“Affiliate” means any business entity from time to time Controlling, Controlled by, or under common Control with, either Party.
“Agreement Start Date” means the Order Form Start Date for the Initial Order Form.
“Applicable Law” means all applicable laws, orders, regulations, legal requirements, codes (including the applicable and relevant codes, regulations and standards of all relevant regulatory authorities) in force at the relevant time.
“Authorized User” means the employees of the Customer who are authorized by the Customer to access the Numerix Software through a unique user ID solely to support the Customer's internal business purposes, subject always to any Authorized User restrictions in the applicable Order Form.
“Cloud” means the databases, computing servers, and related technology, software, and hardware owned or licensed by Numerix which host the Cloud Services.
1.2 "Cloud Services" means the hosting of the Numerix Software by Numerix’s third party suppliers using cloud-computing services from Amazon Web Services and/or data resources from Refinitiv US LLC (or such other Third Party Provider as designated by Numerix from time to time).
1.3 “Confidential Information” means information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, including information concerning the operations, financial affairs and businesses of the disclosing party, and information received by the disclosing party from third parties that the disclosing party is obligated to treat as confidential, but not including information to the extent it: (i) was already lawfully known to the receiving party at the time of the disclosure; (ii) became lawfully known to the receiving party independently; or (iii) is in, or comes into, the public domain other than by wrongful use of or disclosure by the receiving party. For the avoidance of doubt, Numerix's Confidential Information shall include: (i) the existence of this Agreement and its terms; (ii) any information in respect of its Third Party Providers; (iii) information disclosed to the Customer as part of Numerix’s sales and marketing efforts; and (iv) the Numerix Software, the Services and the Documentation.
“Connection Point(s)” means the site(s) hosted on behalf of Numerix where the Numerix Software is made available for access by the Customer where it is receiving the Cloud Services pursuant to an Order Form.
“Contract Year” means the 12-month period from the Agreement Start Date and every 12 month period thereafter.
1.4 “Control” means 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 Controlling, Controlled and the expression "change of Control" shall be construed accordingly;
“Customer Data” the data inputted by the Customer, the Authorized Users or Numerix on the Customer's behalf for the purpose of the Customer and the Authorized Users using and receiving the Services or facilitating the Customer's and Authorized Users' use and receipt of the Services. Customer Data shall at all times exclude the Numerix Underlying IPR.
“Customer Equipment” means any equipment (including any tools, systems, software, cabling or facilities, computer hardware, peripherals, communication devices) provided by or on behalf of the Customer to facilitate the Customer’s receipt of the Services. "Customer Equipment" shall exclude any equipment that is owned or licensed by Numerix.
"Customer Hosting Services" means the hosting of the Numerix Software by the Customer pursuant to and in accordance with Section 5 (Customer Hosting) of the Legal Terms.
“Customer Materials” all documents, information, software, equipment, systems, items and materials in any form (including all Intellectual Property Rights of the Customer which have been developed by the Customer independently of the Agreement) whether owned by the Customer or a third party, which are provided by or on behalf of the Customer to Numerix in connection with the Agreement. Customer Materials shall at all times exclude the Numerix Underlying IPR.
"Customer Personnel" the employees, staff, workers, agents, consultants and sub-contractors of the Customer or its Affiliates from time to time.
“Data Protection Legislation” means all applicable laws related to data privacy and/or Personal Data which apply to Customer’s use of the services in accordance with this Agreement.
“Deliverable” means any specific output of the Professional Services or Platform Onboarding Services to be provided by Numerix to the Customer as specified in the Agreement.
“Derivative Works” means (i) for copyrightable or copyrighted material, any translation, abridgment, revision, compilation, enhancement, or other form in which an existing work may be recast, improved, transformed, or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent, and/or trade secret.
“Derived Market Data” means market data that has been generated through the use of the Services that has been sourced from, or produced by manipulating Information or is created by performing calculations or recasting, transforming, modifying or adapting the Information or combining the Information with other data, to such a degree that it cannot be recognized as deriving from the Information, reverse engineered or otherwise traced back to the Information without an extraordinary amount of time and effort other than by the creator.
“Documentation” means such user guides, manuals, instructions, terms of use, privacy notices or other documents or materials relating to the provision of the Services that Numerix provides or makes available to Customer in an Order Form and/or via the Numerix Trust Center (in any format provided by Numerix), as updated by Numerix from time to time (including a description of the Numerix Software and its features.
"Fees” means the charges to be paid by the Customer for the Services pursuant to an Order Form and any charges for any Additional Work (in each case, to the extent applicable) and any other amounts due to Numerix pursuant to this Agreement.
“Field of Use” means the organization(s) within the Customer as set out in the Order Form.
“Force Majeure Event” has the meaning set out in Section 22.4.
“Information” means the information, including, but not limited to, data, text, images, and sound recordings, contained in the relevant Information Product in raw form and such information as it may be modified by Customer, except to the extent that the modified information is Derived Market Data.
“Information Product” means any data or service provided by or on behalf of a Third Party Provider.
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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” means claims, demands, actions, awards, costs, expenses, damages and losses (including any interest, fines and reasonable legal and other professional costs and expenses incurred).
“Numerix Software” means the object code version of the Numerix software programs and instrument codes listed in the "Numerix Software" section of an Order Form, including all templates, scripts, and objects delivered by Numerix as a component thereof, and all associated Documentation, together with all fixes, corrections, updates, revisions, improvements and modifications thereof, when and as released, that Numerix provides to Customer via the Connection Points (as part of the Cloud Services and/or the Customer accesses through its own hosting arrangements as part of the Customer Hosting Services) as set out and further described in the relevant Order Form and Documentation.
“Numerix Trust Center”: means Numerix's Trust Center, which is Numerix's platform that is available to the Customer at [trust.numerix.com] and which contains Numerix's policies and standards (including Numerix’s privacy, security, and compliance standards) and as updated by Numerix without notice from time to time.
"Numerix Underlying IPR" means all Intellectual Property Rights owned or controlled by Numerix and its licensors, including in the Numerix Software and in the delivery of any Support Services to Customer, materials, tools, data, inventions, innovations of any kind and Numerix's pre-existing processes and procedures, general concepts, ideas, methodologies, processes, techniques or algorithms, which have been developed independently of the Agreement (including any additions, modification and/or improvements made to such items, irrespective of whether these have arisen from any proposal or ideas provided by the Customer or the Customer Personnel and/or through the provision of the Services).
“Order Form” means the Initial Order Form and any agreed further order for Services that incorporate the Legal Terms (which shall be set out in substantially the same form as the Initial Order Form).
“Order Form Term” means the Order Form Initial Term together with any subsequent Order Form Renewal Periods.
“Personal Data” has the meaning ascribed to it under applicable Data Protection Legislation.
"Platform Onboarding Services" means the platform onboarding services to be provided by Numerix in accordance with an Order Form and Section 3 (Professional Services and Platform Onboarding Services), and as specifically described in the relevant Statement of Work (SOW).
"PolyPaths Appendix" means the Appendix of an Order Form that sets out the additional terms that apply where Numerix is providing the PolyPaths Software to the Customer.
"PolyPaths Software" means the software, underlying algorithms, functions and documentation identified as the "PolyPaths Software" in an Order Form and as further described in the PolyPaths Appendix.
“Professional Services” means the general consultancy and/or training services to be provided by Numerix in accordance with an Order Form and Section 3 (Professional Services and Platform Onboarding Services), and as specifically described in the relevant SOW.
"Quarter" means each period of three calendar months ending on 31 March, 30 June, 30 September and 31 December.
“Rate Card” means the then applicable standard rates for the relevant Services (including the hourly rate or daily rate for the relevant level of employee or contractor of Numerix that Numerix considers is required as the case may be) as may be set out in Appendix A of an Order Form or in a standard price list that Numerix prepares (as amended and updated by Numerix from time to time).
"Relevant Deliverable" has the meaning set out in section 3.1.
"Renewal Periods” means the applicable renewal term of an Order Form which, unless otherwise stated in the Order Form, will be the same period as the Order Form Initial Term.
“Security Event” means (i) any unauthorized third party access to or use of the Services; or (ii) any use of the Services by the Customer or any Authorized User that is in breach of this Agreement.
“Services” means the services (including the relevant Professional Services, the Platform Onboarding Services, the Subscription Services and/or the Support Services and any Additional Work) to be provided by Numerix to the Customer under this Agreement, as specifically described in the relevant Order Form and/or SOW (as applicable).
“Statement of Work (SOW)” means the relevant contract to be signed by the parties for the Professional Services
“Subscription Services” means the provision of the Numerix Software as a service by, or on behalf of, Numerix, to the Customer either as part of the Cloud Services and/or as part of the Customer Hosting Services (as the case may be), as specifically described in the relevant Order Form.
“Support Services” the support services to be provided by Numerix as specifically described in Section 8 (Support Services) and the relevant Order Form. For the avoidance of doubt, the Support Services shall not include any Platform Onboarding Services or otherwise require Numerix to provide any further development work or services.
“Taxes” has the meaning set out in Section 14.4.2.
“Territory” means the geographical region set out in the Order Form.
“Third Party Agreements” means the terms and conditions of any third party agreements that are set out in an Order Form, or the relevant terms and conditions of any Third Party Providers that otherwise apply to the provision of the Services (including all relevant end-user licensing agreements or service support agreements that may or may not need to be entered into by the Customer in order to use the Numerix Software).
“Third Party Data” means Information licensed by Numerix from Third Party Providers and its third parties which the Subscription Services will access and process in the creation of the Derived Market Data provided to the Customer to use with the Subscription Services pursuant to this Agreement and any Order Form.
“Third Party Providers” means any third party provider that provides any element of the Numerix Software and/or the Services (including pursuant to a Third Party Agreements) but excluding any personnel to the extent engaged by Numerix to provide any of the Professional Services or Platform Onboarding Services. A list of all Third Party Providers will be provided to the Customer upon the Customer's request.
“Virus” means any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, or adversely affect the user experience.
“Vulnerability” means a weakness in the computational logic (for example, code) found in software or hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
1.7 Any words following the terms: including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.9 Any reference to the requirement for something to be given, received or similar in "writing" or "written" shall include and permit this to be done by e-mail provided such e-mail is sent to an authorized representative of that party.
1.10 Except with respect to the obligations on the Customer to make payment at a particular time, time shall not be of the essence unless expressly stated otherwise. Any obligations on Numerix to undertake a particular activity by a certain date or time shall be construed as an obligation on Numerix to use reasonable endeavours to undertake such activity within that timeframe.
2. THE SERVICES
2.1 These Legal Terms establish the contractual framework for the supply of the Services by Numerix to the Customer pursuant to the Order Forms executed between the parties and these Legal Terms shall be incorporated into all Order Forms relating to the Services agreed between the parties.
2.2 Each Order Form shall be part of this Agreement and be governed by the Legal Terms and shall not form a separate contract. An Order Form may contain additional terms and conditions that apply solely to that Order Form (including in the Special Conditions section) and may, to the extent expressly set out in the Order Form, take precedence over one or more Sections of these Legal Terms.
2.3 Where Additional Work is to be provided to the Customer, such Additional Work shall be provided in accordance with an Order Form (where one has been agreed between the parties) and the Rate Card (where no such Order Form has been entered into or the relevant Order Form does not set out the relevant Fees for such Additional Work).
3. PROFESSIONAL SERVICES AND PLATFORM ONBOARDING SERVICES
3.1 This Section 3 (Professional Services and Platform Onboarding Services) shall only apply where Numerix provides Professional Services and/or Platform Onboarding Services pursuant to an SOW and where, as part of the delivery of those services, the parties both agree that the relevant Deliverable shall be subject to formal acceptance testing before the relevant Deliverable has been formally accepted (the "Relevant Deliverable").
3.3 If the Customer notifies Numerix of a Defective Deliverable within the period specified in Section 3.2, Numerix will re-test the Defective Deliverable and notify the Customer of the results. If Numerix agrees that the Defective Deliverable does not materially comply with the Acceptance Criteria, then Numerix shall apply commercially reasonable efforts and time, attention and resources to promptly remedy such defects so that Acceptance can take place as soon as reasonably practicable (in accordance with the process set out in Section 3.2.
4. LICENCE TERMS
4.1 Subject to the Customer complying with its obligations under this Agreement, Numerix grants to the Customer's Authorized Users a non-exclusive, revocable, non-transferable, non-sublicensable right to receive the Services (including accessing the Subscription Services where indicated on the Order Form) during the relevant Order Form Term in accordance with the Documentation and the terms of this Agreement. Any breach of any of the Agreement by Authorized Users shall constitute a breach by Customer.
4.2 The Customer undertakes, on behalf of itself and each Authorized User, that:
4.2.2 it shall, at its sole cost and expense, acquire, install and maintain all Customer Equipment and all other hardware, equipment, software and other technology necessary to access and use the Services;
4.2.3 it shall configure the Customer Equipment to protect the Customer Data and the Numerix Software from intrusion or unauthorized access;
4.2.4 it shall comply with any and all computer system access and use policies, guidelines, procedures and requirements, as well as security and privacy policies, that are provided by Numerix from time to time (including as set out in the Numerix Trust Center);
4.2.5 it shall procure that each Authorized User shall register for their own account, keep a secure password or pin for their use of the Subscription Services, keep their password confidential and not share their account or password with any other person;
4.2.6 no Authorized User account or subscription is to be shared with another person;
4.2.7 it is responsible for the security of its access to the Numerix Software;
4.2.8 it will promptly notify Numerix in writing of any actual or suspected Security Event, Virus or Vulnerability; and
4.2.9 upon written request from Numerix, the Customer shall provide written certification signed by the Customer attesting to the Customer's compliance with this Agreement, including a list of Authorized Users with access to the Numerix Software (together with accurate complete and updated registration details for such Authorized Users).
4.3 The Customer shall not, and shall procure that any Authorized User shall not:
4.3.3 knowingly input, upload or transmit any Virus through the Services or the systems of Numerix, or do anything which may damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm the Service or the systems of Numerix;
4.3.4 not access, store, distribute or transmit any material during the course of its use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
4.3.5 use the Services in a way which infringes or otherwise violates the Intellectual Property Rights of a third party or Applicable Law;
4.4 Customer and/or Customer Personnel will not use or access the Numerix Software for purposes of monitoring the availability, performance or functionality of the Subscription Services or for any other benchmarking or competitive purposes.
4.5 Without prejudice to any other rights or remedies available to it, if Numerix reasonably considers that any Authorized User is causing the Customer to be in breach of this Agreement (or otherwise where required by Applicable Law to do so), Numerix may, at its sole discretion, suspend the use of the Numerix Software and/or Services by such Authorized User on a permanent or temporary basis.
4.6 Where Numerix has agreed to provide the Customer with the PolyPaths Software pursuant to an Order Form, then the provisions of PolyPaths Appendix shall also apply to the Customer (in addition to the terms of this Agreement).
5. CUSTOMER HOSTING
5.1 This Section 5 (Customer Hosting) shall only apply where indicated on an Order Form that Customer shall host the Numerix Software pursuant to the provision of Customer Hosting Services, or otherwise where agreed by Numerix in writing.
5.2 The Customer shall be solely responsible for hosting the Numerix Software in accordance with the terms of this Agreement (including complying with the restrictions at Section 4 (Licence Terms) and remaining responsible for all costs and other liabilities arising from such hosting). Subject to any relevant Support Services being provided pursuant to the Agreement, Numerix shall have no liability or responsibility for the availability of the Numerix Software.
5.3 The Numerix Software shall be deemed delivered upon Numerix’s notification to the Customer that such Numerix Software stated in the Order Form is available for secure download from Numerix’s web portal.
5.4 The Customer shall have in place, and shall maintain throughout the term of this Agreement, appropriate technical and organisational measures to mitigate against the unauthorized or unlawful access to the Numerix Software and against the accidental loss or destruction of or damage to the Numerix Software.
5.5 The Customer shall, in the event of:
5.5.1 any unauthorized or unlawful access to the Numerix Software, immediately notify Numerix of this and take such reasonable steps to mitigate the effect of such access and prevent such access from recurring; and
5.5.2 any loss, destruction or damage to all or part of the Numerix Software, immediately notify Numerix of this and take such reasonable steps to prevent such loss, destruction or damage from recurring.
5.6 The Customer shall not use the Numerix Software in combination with any hardware, programs, or data unless the Customer has obtained or otherwise possesses sufficient rights with respect to such hardware, programs, or data to enable such combination.
5.7 Subject to any other restrictions contained in the Agreement, the Customer may make one (1) back-up copy of the Numerix Software solely for archival back-up purposes, provided that, in connection with any such copy, the Customer reproduces all confidentiality and proprietary notices on such copy.
5.8 Unless expressly permitted in the Agreement or otherwise agreed by Numerix in writing, the Customer will not and will not allow a third party to:
5.8.1 lend, lease, distribute, or use the Numerix Software on a time-sharing, service bureau, or remote job entry basis;
5.8.2 install the Numerix Software in hosted and/or ASP environment or on a network or other multi-user computer system in a manner that would make the Numerix Software available to a number of persons in excess of the permitted number of Authorized Users;
5.8.3 use the Numerix Software to create software products or development tools or otherwise create Derivative Works thereof; and
5.8.4 receive the source code to the Numerix Software, in whole or in part.
5.9 The Customer may transfer the Numerix Software from one operating system to another operating system provided that:
5.9.1 it obtains the prior written consent of Numerix;
5.9.2 the relevant new operating system is one that is supported by Numerix;
5.9.3 the Customer at the time of such transfer has an Order Form in place for the receipt of the relevant Customer Hosting Services; and
5.9.4 the Customer promptly removes and discontinues any use of the prior copy of the Numerix Software, provided that in no case shall the Numerix Software be operated on more than one (1) production operating system for more than fifteen (15) days.
6. INSPECTION
6.1 Numerix and/or its directors, officers, employees, agents, auditors, advisors or other representatives ("Representatives") may, upon written notice to the Customer, audit the Customer’s compliance with the terms of this Agreement. The Customer shall allow Numerix and its Representatives access to its systems and records (including, where necessary, the Customer's premises) during the Customer's normal business hours ("Audit").
6.2 If, pursuant to the Audit, Numerix or its Representatives discover any breach of this Agreement (including that additional sums are owed by the Customer for use of the Numerix Software), without limiting any rights or remedies of Numerix, then notwithstanding any other remedies available to Numerix, Customer shall:
6.2.1 immediately remedy the breach (including where this relates to additional amounts owed to Numerix, pay to Numerix such amounts as are discovered to be or have been due and owing to Numerix (such payment to be made in accordance with the rates set out in Numerix's then applicable Rate Card)); and
6.2.2 promptly reimburse Numerix for the cost of the Audit (and in any event payment by the Customer shall be made within 5 days of the Audit).
6.3 Numerix and its Representative may copy any item evidencing a breach of this Agreement that the Customer may possess in breach of this Agreement.
6.4 The Numerix Software may include functionalities that allow it to record data relating to the Customer's installation and use of the Numerix Software (including information that may affect Numerix's calculation of the Fees) (collectively the “Usage Data”). Upon request by Numerix from time to time, the Customer shall promptly collect and deliver such Usage Data to Numerix (in accordance with Numerix's instructions).
7. SERVICE STANDARDS
7.1 Numerix shall ensure that the relevant Services will be performed:
7.1.1 with reasonable skill and care; and
7.1.2 substantially in conformance with the Documentation and the relevant provisions of the Agreement.
7.2 The obligation at Section 7.1, shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Numerix's instructions, or modification or alterations to any element of the Services by any party other than Numerix or Numerix's duly authorized contractors or agents.
7.3 Subject to Section 7.2, if the Services do not conform with the foregoing obligation, Numerix will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Except as expressly provided otherwise, such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the obligation set out in Section 7.1.
7.4 Numerix does not warrant that:
7.4.1 the Customer's use of the Services will be uninterrupted or error-free;
7.4.2 the Services, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; or
7.4.3 the Numerix Software will be free from Vulnerabilities or Viruses;
7.5 Numerix 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 the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.6.1 suspend any Authorized User's access to the Services;
7.6.2 suspend the Services; and/or
7.6.3 take any other reasonable steps Numerix deems appropriate,
7.6.4 until the relevant Security Event has been resolved.
8. SUPPORT SERVICES
8.1 This Section 8 (Support Services) shall only apply where it is indicated in an Order Form that the Support Services are to be provided by Numerix or this is otherwise agreed by Numerix in writing.
8.2 The Support Services will substantially conform with Support as set out in as set out as follows -For Customer Hosting Services: https://www.numerix.com/trust-center/support-services-agreement. For Cloud Services SLA: trust.numerix.com. For clarity, in order to enable Numerix to provide the Support Services, the Customer shall provide Numerix with access to such systems and personnel that Numerix reasonably require access to from time to time.
9. CUSTOMER DATA AND SECURITY
9.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
9.3 The Customer grants Numerix and its Affiliates an irrevocable, perpetual, royalty free, non-exclusive license to use any Customer Data (including, without limitation, performance metrics and metadata), collected by the Customer or Numerix pursuant to the Services, whether from an Authorized User or otherwise, provided that where the Customer Data is used more generally to improve the software and the services that Numerix provide, it shall only be used on an deidentified and aggregated basis. The license granted under this Section 9 (Customer Data and Security) shall survive termination of this Agreement.
9.4 Where Numerix is undertaking any Professional Services and/or Platform Onboarding Services which include the loading of Customer Data on to the Cloud, the Customer shall be solely responsible for ensuring that both the duration and scope of Numerix's access to such Customer Data is strictly limited to the access required under the specific (SOW).
9.5 Subject to Section 9.4, to the extent that Customer Data is provided to Numerix, the Customer shall:
9.5.1 ensure that:
(a) such Customer Data is provided to Numerix in accordance with Numerix’s instructions and through Numerix’s approved channels;
(b) any access to Customer Data is limited to read-only access in the Customer’s development environment for the Professional Services and/or Platform Onboarding Services (and Customer will not grant access to any other environment, such as its test, production or disaster recovery);
(c) the Customer will not grant access to any Customer Data that is unencrypted,
9.5.2 provide Numerix with:
(a) secure workstations and networks for accessing Customer Data that are monitored, managed, configured, supported and maintained by Customer; and
(b) unique user ID/passwords to each Numerix personnel that requires access to Customer Data, and such credentials will be solely managed by Customer.
9.6 The Customer will configure the Customer Equipment to protect the Customer Data from intrusion or unauthorized access. The Customer is solely responsible for:
9.6.1 the administration, authorisation and termination of all Authorized User access authorisations; and
9.6.2 the security of its access to the Services and the security of each Authorized User’s access authorisation.
9.7 Numerix shall comply with its information security obligations as set out in the Numerix Trust Center.
10. DERIVED MARKET DATA
10.1 Subject to the terms of this Agreement, Numerix grants Customer the right to view and access the Derived Market Data for the Customer’s internal business purposes only. The Customer shall not use or permit anyone else to use the Derived Market Data as part of the Services to create any securities products or indices based on the Services or any portion thereof.
10.2 The Customer may not copy or otherwise reproduce the Derived Market Data without the prior written consent of Numerix. The Customer shall not sublicense or rent the Derived Market Data or provide third parties with access to the Derived Market Data. As identified in the applicable Order Form, the Services may include the Derived Market Data from a Third Party Provider and/or additional resources from other Third Party Provider engaged by Numerix from to time and as appropriate, therefore, Customer acknowledges that it shall comply with the terms of Numerix’s Third Party Provider providing Third Party Data as set forth in the Numerix Trust Center.
10.3 Numerix may terminate or suspend the provision of the Derived Market Data in whole or in part, immediately upon notice to Customer in the event required by a Third Party Provider.
10.4 Upon termination of this Agreement subject to any retention required under the applicable Third Party Provider policies, Customer shall promptly erase or destroy all Derived Market Data received as part of the Services.
11. DATA PROTECTION
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Section 11 (Data Protection) is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.2 Numerix acknowledges and agrees that, in the course of its engagement by Customer, Numerix may receive or have access to Personal Data. Numerix shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Personal Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Personal Data under its control or in its possession by all authorized personnel.
11.3 Without prejudice to the generality of Section 11.1, Customer warrants that:
11.3.1 it has all necessary and appropriate rights, consents, lawful bases and notices to enable Numerix to use and transfer Personal Data in connection with this Agreement;
11.3.2 it shall only make available to Numerix, Personal Data that is adequate, relevant and limited to what is absolutely necessary in relation to the purposes for which they are processed by Customer limited to Personal Data necessary for receiving Support Services from Numerix under this Agreement in which case subject to the terms of Numerix’s data privacy policy at the following link: https://www.numerix.com/privacy-policy ;
11.3.3 such Personal Data is provided to Numerix in accordance with Numerix’s instructions and through the Numerix’s approved channels in the case of Cloud Services;
11.3.4 with respect to Personal Data shared with Numerix in accordance with Section 11.3.2 and 11.3.3 above, that it has in place appropriate and reasonable technical and organisational measures to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, in accordance with Data Protection Legislation;
11.3.5 Customer shall be responsible for ensuring that its Authorized Users comply with all requirements relating to Personal Data at all times throughout the Term of this Agreement.
11.4 The parties acknowledge that if Numerix receives or has access to any Personal Data on the Customer's behalf when performing its obligations under this Agreement, Numerix shall:
11.4.1 use and disclose Personal Data solely and exclusively in accordance with the Customer's instructions set out in [Schedule 1] (and any other instructions as may be provided by Customer from time to time), and not use, sell, or rent Personal Data for Numerix’s own purposes or for the benefit of anyone other than Customer, in each case, without Customer’s prior written consent; and
11.4.2 ensure that it has in place appropriate and reasonably proportionate technical and organisational measures, to help protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures in accordance with the applicable Numerix computer system access and use policies, guidelines, procedures and requirements, as well as the Numerix security and privacy policies, as described in the Numerix Trust Center;
11.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
11.4.4 use reasonable endeavours to assist the Customer, at the Customer's cost, in responding to any request from a data subject and in ensuring compliance with the Customer's obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
12. THIRD PARTY AGREEMENTS
12.1 Numerix shall use its reasonable endeavours to:
12.1.1 promptly bring all relevant Third Party Agreements to the Customer's attention in advance; and
12.1.2 pass on the benefit to the Customer of any third party warranties that it receives in respect of the relevant Services.
12.3 The Customer understands and agrees the Services may be provided to the Customer subject to the Third Party Agreements and that in such instances, the Customer's use, enjoyment and receipt of the Numerix Software and the Services will be subject to the Third Party Agreements. Notwithstanding Section 12.1.1, the Customer will always be required to comply with such Third Party Agreements and might need to enter into a Third Party Agreement directly before it is able to use and receive the Numerix Software and the Services.
12.4 For clarity, where a Third Party Provider increases its own charges then, provided Numerix has used reasonable endeavours to keep such increases to a minimum, Numerix shall be free to pass on the additional increases on to the Customer by increasing the Fees that are payable by the Customer.
13. CUSTOMER'S OBLIGATIONS
13.1 The Customer shall:
13.1.1 provide Numerix with all necessary co-operation in relation to this Agreement in order to provide the Services (including complying with any Customer obligations set out in an Order Form);
13.1.2 provide such time, attention and resources and ensure that its personnel engaged in the Services have sufficient power, authority, skill and expertise, to enable Numerix to perform the Services in a timely and efficient manner;
13.1.3 use all reasonable endeavours to prevent any unauthorized access to, or use of the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Numerix;
13.1.4 be fully responsible and liable for ensuring that it (and that the Customer's receipt of the Services (including specifically, where applicable, use of the Numerix Software) complies with Applicable Law;
13.1.5 ensure that its network and systems are in good repair and comply with the relevant specifications provided by Numerix from time to time, including ensuring that the Services are not blocked by the Customer's firewalls;
13.1.6 obtain and shall maintain all necessary licenses, consents, equipment, software, systems and permissions for Numerix to perform its obligations under this Agreement, including without limitation, providing the Services; and
13.2 Customer warrants that the Customer has and will have the necessary rights and consents in and relating to the Customer Materials so that any use of such Customer Materials for and on behalf of Numerix in accordance with this Agreement shall not infringe any third party's rights (including Intellectual Property Rights), or violate any Applicable Law.
13.3 Without prejudice to any other right or remedy Numerix may have, if Numerix's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Customer or Customer Personnel (including a failure to comply with any of its obligations under the Agreement) (a Customer Default) then:
13.3.1 Numerix shall not be responsible for any failure to carry out the relevant obligations and shall be allowed an extension of time to perform its obligations; and
13.3.2 the Customer shall reimburse Numerix for all reasonable additional amounts incurred by Numerix as a result of the Customer Default.
14. CHARGES AND PAYMENT
14.1 Unless stated otherwise in an Order Form or otherwise agreed by Numerix in writing, Numerix shall invoice the Customer for the Fees annually in advance where the relevant amount is known or otherwise agreed in advance, and as otherwise set out in the applicable Order Form in all other cases. The first annual license Fees is due in full upon execution of the applicable Order Form. All subsequent annual payments of the Fees are due upon each anniversary of the Order Form Start Date.
14.2 The Customer shall pay all invoices submitted to it by Numerix within 30 days of receipt to a bank account nominated in writing by Numerix from time to time.
14.3 All Fees payable by the Customer to Numerix under this Agreement:
14.3.1 shall be paid in US dollars. For the avoidance of doubt, the Customer shall bear all currency conversion and related bank charges;
14.3.3 shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If any such withholding or deduction is required, the Customer shall, when making the payment to which the withholding or deduction relates, pay to Numerix such additional amount as will ensure that Numerix receives the same total amount that it would have received if no such withholding or deduction had been required.
14.4 The Customer shall indemnify, defend and hold harmless Numerix (including by way of a gross-up) for any charges or penalties incurred by Numerix as a result of any exemption, withholding or other tax arrangement, except to the extent such charges or penalties are due to the acts or omissions of Numerix. For the avoidance of doubt, the Customer will not be required to pay or reimburse Numerix for any taxes based upon the net worth, capital, net income or franchise of Numerix.
14.5 If Numerix has not received payment of any undisputed amounts due within 7 days after the due date, without prejudice to any other rights and remedies available to Numerix, Numerix may:
14.5.1 charge interest from the invoice due date on the overdue sum at the rate of (i) one and one half percent (1.5%) per month, and (ii) the maximum interest allowable under applicable law. Licensee will pay interest upon remitting the principal amount to Numerix.; and
14.5.2 disable and suspend the Customer's (and its Authorized Users') access to the Services until the Customer has paid all outstanding amounts due without liability to the Customer.
14.6 The Customer shall reimburse Numerix for any reasonable expenses incurred or properly committed to by Numerix when performing its obligations under this Agreement (including documented telephone, travel, lodging, and other out-of-pocket expenses that Numerix may incur in connection with Numerix’s performance of the Services).
14.7 Numerix shall be entitled to increase the Fees in respect of the Subscription Services on an annual basis by 5% each year.
14.8 If the Cloud Fees are not expressly set out in the relevant Order Form, the Cloud Fees shall be 25% of the annual fee for the Subscription Services (the “Baseline Figure”). At the end of each Quarter, Numerix shall review the actual Cloud Fees incurred by the Customer and/or attributable to the Customer's use of the Subscription Services (the "Actual Usage Figure") and, if the Actual Usage Figure exceeds the Baseline Figure, then Numerix shall invoice the Customer for the difference between the Baseline Figure and the Actual Usage Figure and the Customer shall pay such invoice in accordance with this Section 14 (Charges and Payment). The Customer agrees that Numerix shall be entitled to increase the Baseline Figure for the subsequent year of the applicable Order Form if the Actual Usage Figure exceeded the Baseline Figure during the previous Quarter.
15. INTELLECTUAL PROPERTY RIGHTS
15.2 Ownership of the Customer Materials shall remain vested and be the property of the Customer or its licensors.
15.3 Except as expressly provided otherwise, the Customer grants Numerix a royalty free, non-exclusive license to use the Customer Equipment and the Customer Materials to the extent necessary to provide the Services in accordance with the terms of the Agreement.
15.4 Save to the extent that it comprises Customer Materials or Third Party IPR, ownership of all Intellectual Property Rights in the Deliverables shall vest in Numerix.
15.5 Subject to the Customer complying with its obligations under this Agreement, including payment of the Fees, Numerix grants to the Customer a royalty-free, non-exclusive, non-sublicensable license to use the Deliverables (where applicable to the extent necessary to receive the benefit of the relevant Services for the term of the relevant Order Form for its internal business purposes but subject to the other restrictions on and obligations of Customer set out in this Agreement). For the avoidance of doubt, the restrictions and obligations of the Customer under Section 4.3 in respect of the Numerix Software and the Services shall also apply to the Customer's use of the Deliverables (where applicable).
15.6 The Customer grants Numerix the right to use its company name, logos and emblems for the purpose of the provision of the Services and in connection with its marketing campaigns and PR activities (including the right for Numerix to describe the nature of the Services provided to the Customer under the Agreement on Numerix's website and in other publications).
15.7 The Customer acknowledges that any feedback, ideas, suggestions or enhancements to the Services and/or Numerix's other services or software offerings that are proposed, communicated or provided by the Customer (or any Authorized User) to Numerix (the "Additions") shall be the exclusive property of Numerix (and shall exclusively form part of the Numerix Underlying IPR). To the extent that any Additions are not automatically owned by operation of law or under this Agreement by Numerix, the Customer hereby assigns (by way of present and future assignment of rights) with full title guarantee and without additional consideration, any and all right, title, and interest (including Intellectual Property Rights) worldwide in and to the Additions to Numerix.
16. IP INFRINGEMENT
16.1 Subject to Section 16.4, if the Customer receives a claim that Customer's receipt of the Services in accordance with this Agreement infringes any third party's Intellectual Property Rights (or Numerix reasonably considers that the Customer may receive such a claim), then Numerix may procure the right for the Customer to continue to receive the Services or replace or modify the Services so that they become non-infringing.
16.2 If the remedies at Section 16.1 are not reasonably available, Numerix shall be entitled to promptly terminate this Agreement (in whole or in part) and refund the Customer the unused pro-rata share of the pre-paid Fees for the period from the date of effective termination until the end of the relevant Order Form Initial Term or the then applicable Order Form Renewal Period (as applicable) provided that the refund of Cloud Fees, Third Party Data Fees and/or any other fees charged by Third Party Providers in connection with the Subscription Services shall be dealt with according to such Third Party Supplier’s refund policies. For clarity, subject to Section 16.4, the remedies outlined in this Section represents the Customer's sole and exclusive remedy for any such actual or potential issues relating to infringement of any third party's Intellectual Property Rights.
16.3.2 the combination, operation or use of the Services or the Documentation (as applicable) with any equipment, device, data, technology, service or software not provided by Numerix;
16.3.3 the Customer's delay in implementing an update, upgrade or new version;
16.3.6 (together the Exclusions).
16.4.1 the Claim has not arisen from any of the Exclusions;
16.4.2 the Customer promptly notifies Numerix of the Claim, specifying in reasonable detail the:
(a) nature of the Claim;
(b) grounds on which it is based; and
(c) circumstances that give rise to the Claim.
16.4.3 Numerix having the sole conduct of all negotiations and litigation and settlement arising from the Claim;
16.4.4 the Customer providing Numerix with all information and assistance reasonably required by Numerix; and
16.4.5 the Customer making no admission in respect of the Claim.
16.5 Section 16.1 to Section 16.4 (inclusive) states the Customer's sole and exclusive rights and remedies, and Numerix's entire obligations and liability, for infringement or alleged infringement of any third party's Intellectual Property Rights.
16.6 The Customer shall indemnify Numerix and each of the directors, officers and agents of Numerix (each being a Numerix Indemnified Party) from and against any and all Losses of a Numerix Indemnified Party arising out of or in any way connected with any actions, claims and/or demands brought against a Numerix Indemnified Party arising from:
16.6.1 breach of Sections 4 (Licence Terms) or Section 5 (Customer Hosting);
16.6.2 the use of the Customer Materials and/or Customer Data by or on behalf of Numerix;
16.6.3 the Customer's or any third party's use of, or inability to use, the Third Party Data as part of the Services or any breach by the Customer of the use restrictions regarding the Third Party Data as part of the Services;
16.6.4 any misappropriation of the Numerix Software by the Customer or the Customer’s personnel; and/or
16.6.5 in the case of Customer Hosting Services, (i) any modification of or addition to the Numerix Software not provided or approved in writing by Numerix, (ii) any infringement, misappropriation, or other claim that arises from the combination of the Numerix Software with any hardware, software or data not authorized in writing by Numerix, provided that such claim would not have arisen from the use of the Numerix Software alone, or (iii) any fraud or misrepresentation made by Customer in connection with the Numerix Software.
17. CONFIDENTIALITY
17.2 Each party may disclose the other party's Confidential Information:
17.2.1 to its employees, officers, affiliates, contractors, agents, representatives or advisers (“Representatives”) who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement provided that the disclosing party has ensured that its Representatives or advisers to whom it discloses the other party's Confidential Information complies with this Section 17 (Confidentiality); and
17.2.2 as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority provided that the disclosing party notifies the other party as far in advance as reasonably possible (unless prevented from doing so by Applicable Law).
17.3 Neither party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement. The receiving party shall use at least the same degree of care as it employs to avoid unauthorized use or disclosure of its own information of a similar nature, but in any event no less than reasonable care, to prevent unauthorized use or disclosure of the Confidential Information of the disclosing party. The receiving party may disclose such Confidential Information to its Representatives on a need to know basis subject to the provisions of this Section 17, it being understood that the receiving party will inform such Representatives of the confidential nature of the Confidential Information and the obligations assumed hereunder and the receiving party’s Representatives will only be given access to same if they consent to abide by such obligations. The receiving party shall be responsible for ensuring that its Representatives comply with these confidentiality provisions and will be liable for all acts and omissions of such Representatives hereunder.
17.4 The parties acknowledge that any unauthorized use or disclosure of the disclosing party’s Confidential Information may cause irreparable damage to the disclosing party and that the disclosing party shall be entitled to seek equitable relief, including injunctive relief and specific performance, in the event of any breach of the provisions of this Section 17 (Confidentiality). Such remedies for a breach of this Section 17 (Confidentiality) are in addition to all other remedies available at law or in equity. If an unauthorized use or disclosure occurs, the receiving party will promptly notify the disclosing party and take, at its expense, all steps necessary to recover the disclosing party’s Confidential Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If the receiving party fails to take these steps in a timely and adequate manner, the disclosing party may take them at the receiving party’s expense, and the receiving party will provide the disclosing party with its reasonable cooperation in such actions that the disclosing party may request.
17.5 Notwithstanding the provisions of this Section 17 above, the confidentiality provisions in respect of each party’s trade secrets shall survive such termination and continue to apply for as long as allowed under applicable law.
18. LIMITATION OF LIABILITY
18.1 Subject to Section 18.2:
18.1.1 the Customer assumes sole responsibility for results obtained from the receipt and use of the Services and any Third Party Data, and for conclusions or inferences drawn from such use. Numerix shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Numerix by the Customer in connection with the Services, or any actions taken by Numerix at the Customer's direction;
18.1.3 Numerix shall have no liability in respect of the accuracy, reliability, sufficiency, completeness, availability or otherwise, of any Third Party Data; and
18.1.4 except as expressly and specifically provided for in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
18.2 Nothing in this Agreement shall exclude either party's liability for death or personal injury caused by its negligence, for fraud or fraudulent misrepresentation, (in the case of the Customer) for the payment of the Fees or for any other matter that cannot be limited or excluded by Applicable Law.
18.3 Subject to Sections 18.1 and 18.2, Numerix shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits or revenue, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of opportunity, loss of use, corruption or recovery of software, data or information, loss of savings, wasted expenditure, any costs of substitute goods, services or deliverables, depletion of goodwill or for any indirect or consequential loss arising out of, or in connection with, this Agreement.
18.4 Subject to Sections 18.1, 18.2 and 18.3 Numerix's total aggregate liability in each Contract Year in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising under or in connection with the Agreement (including under all Order Forms in aggregate), shall be limited to the total Fees actually received by Numerix from the Customer in that Contract Year.
18.5 The Customer accepts responsibility for its selection of the Numerix Software and the Services and acknowledges that the Services have not been developed to meet the individual requirements of the Customer.
19. TERM AND TERMINATION
19.2 Unless terminated earlier as provided in this Section 19 (Term and Termination), each Order Form will come into effect on the Order Form Start Date specified in the applicable Order Form and remain in force for the Order Form Initial Term applicable to that Order Form. Thereafter, an Order Form shall be automatically renewed for successive Order Form Renewal Periods at the end of the applicable Order Form Initial Term or Order Form Renewal Period (where the Agreement has not been lawfully terminated at the end of the relevant Order Form Initial Term or Order Form Renewal Period (as the case may be)).
19.3 Without affecting any other right or remedy available to it, either party may terminate an Order Form by giving to the other written notice, at least 60 days before the end of the applicable Order Form Initial Term or the relevant Order Form Renewal Period. If terminated under this Section 19.3, an Order Form shall remain in force and then only be terminated upon the expiry of the next applicable Order Form Initial Term or the relevant Order Form Renewal Period (as the case may be). If either party fails to terminate an Order Form in accordance with this Section 19 (Term and Termination), the Order Form shall automatically renew further to Section 19.2.
19.4 Without affecting any other right or remedy available to it, Numerix may terminate an Order Form with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under such Order Form or any other agreement in place between the parties (or their respective Affiliates) on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
19.5 Without affecting any other right or remedy available to it, a party may terminate this Agreement (or the relevant Order Form) with immediate effect by giving written notice to the other party if that other party commits a material breach of this Agreement (or the relevant Order Form) (other than non-payment by the Customer which is covered by Section 19.4) which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
19.6 Without affecting any other right or remedy available to it, Numerix may terminate this Agreement (or the relevant Order Form) with immediate effect by giving written notice to the Customer in the event that the Customer breaches Section 5.5 through to 5.9 (Customer Hosting), Section 15 (Intellectual Property Rights) or Section 17 (Confidentiality) and any such breach as set out in this sub-section 19.6 is not commercially reasonably capable of cure; or Customer has experienced a change of Control to (a) an entity that competes with Numerix’s business (developing analytics and/or risk software and services), or (b) an entity lacking capitalization reasonably sufficient to discharge the Customer’s obligations under this Agreement (or any part of them and in Numerix's sole opinion). Where a change of Control occurs, the Customer shall provide Numerix with prompt written notice (such notice to confirm the identity of the parties involved in the relevant change of Control).
19.7 Without affecting any other right or remedy available to it, a party may terminate this Agreement (including all Order Forms under it) with immediate effect by giving written notice to the other party if the other party ceases to conduct business in the normal course, is declared insolvent, undergoes any procedure for the suspension of payment, makes a general assignment for the benefit of creditors, or a petition for bankruptcy, reorganization, dissolution, or liquidation is filed by or against it.
19.8 On termination or expiry of this Agreement for any reason:
19.8.2 in the case of Customer Hosting Service, the Customer will purge from its computer systems, storage centres and media, and other files and destroy or deliver to Numerix or its designee, all copies of the Numerix Software and Confidential Information within the Customer’s possession or control, except to the extent that retention of any such materials is required by law. In the event that the Customer retains any materials provided by Numerix under this sub-section (a), such retained materials shall be treated as Numerix’s Confidential Information; and (iii) destroy or upon request, deliver to Numerix written certification executed by an officer of the Customer, attesting that Customer has complied with all of its termination obligations set forth in this Agreement.
19.8.5 the Customer shall immediately pay to Numerix all of Numerix's outstanding unpaid invoices and interest and (in respect of any Services supplied but for which no invoice has been submitted), Numerix may submit an invoice, which shall be payable by the Customer immediately on receipt. In addition, in the event Numerix terminates the Agreement (including in whole or in part) in accordance with Sections 19.4, 19.5 and 19.6, the Customer shall immediately pay to Numerix, by way of liquidated damages, all other amounts that would otherwise have become payable with respect to the terminated parts of the Agreement through to the conclusion of the applicable Order Form Initial Term;
19.8.6 all Customer Data will be promptly and securely erased or destroyed from the Cloud in a manner devised to destroy all such Customer Data contained therein. At the Customer's option and upon at least 60 days' written notice prior to the date of the termination, and subject to the parties entering into a separate Order Form, Numerix shall continue to retain Customer Data, or specific databases or other collections or articles of Customer Data, as though this Agreement and all Order Forms were still in force, for a period to be agreed to by the parties under such Order Form; and
19.8.7 should the Customer require any reasonable support or assistance, then such support and assistance shall be provided by Numerix under an Order Form and chargeable on a time and materials basis in accordance with Numerix's then applicable Rate Card, provided that Numerix shall not be obliged to provide such support and assistance if any amounts are owed to Numerix on termination or for more than 30 days after the date the applicable Order Form under the Agreement terminates.
19.9 Where Numerix has a right to terminate this Agreement or an Order Form, it may instead elect to terminate the entire Agreement (including all Order Forms under it or any part of the Agreement), or any one or more Order Forms.
20. CHANGE CONTROL
20.1 Either Party may propose changes to the scope of the Agreement but, except as provided for otherwise in the Agreement, no proposed changes shall come into effect until a relevant change document has been signed by both parties (a Change Order). A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
20.1.1 the provision of the relevant Services;
20.1.2 the Fees;
20.1.3 any agreed timetable for delivery; and
20.1.4 any other relevant terms of the Agreement.
20.2 If the parties:
20.2.1 agree to a Change Order, they shall sign it and that Change Order shall amend the relevant part of the Agreement; or
20.2.2 are unable to agree a Change Order, either party may require the disagreement to be dealt with in accordance with the dispute resolution procedure in Section 22.17.
20.3 The parties shall act reasonably and promptly when considering any change that is required as a result of a change in Applicable Law and Numerix shall be free to adjust the Fees to reflect any reasonable and demonstrable increase in its own costs resulting from the change in Applicable Law.
21. NON-SOLICITATION
21.1 During the term of this Agreement and for a period of twelve (12) months thereafter, neither party shall solicit or offer employment or any independent contractor position to the personnel or subcontractors of the other party who were involved in such other party’s performance under this Agreement. The foregoing shall not prohibit either party from soliciting personnel or any independent contractor through widely used media such as newspaper advertisements or LinkedIn job advertisements, so long as such means are not targeted specifically at the other party’s (or its affiliates) personnel or subcontractors who were involved in such other party’s performance under this Agreement.
21.2 In the event that a party breaches Section 21.1 and such breach is not remedied within five (5) business days following the breaching party’s receipt of written notice from the non-breaching party, the breaching party shall be liable to the aggrieved party for an amount equal to fifty percent (50%) of the greater of the annual base compensation of the relevant personnel in his/her new position or prior position.
22. GENERAL
22.2 If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. For clarity, in such instances, 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.
22.3 Except as provided for otherwise, no variation of this Agreement shall be effective unless it is in writing and signed by the parties.
22.5.1 take part in any compulsory audits or inspections;
22.5.2 not export, re-export, divert or transfer, directly or indirectly, the Numerix Software and/or any related material to any country or national thereof that is embargoed by executive order or other applicable law, rule or regulation, unless the Customer has obtained the prior written authorization of Numerix, the U.S. Commerce Department and any successor or other governmental agency having jurisdiction or authority; and
22.5.3 provide any reasonable assistance, at the reasonable cost of Numerix, to enable Numerix to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any relevant export control laws.
22.7 This Agreement and any documents referred to in it constitute the entire agreement and understanding of the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.8 The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those that are expressly stated in the Agreement.
22.9 Neither party shall have any remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement, unless the statement was made fraudulently.
22.10 This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
22.11 This Agreement is personal to the Customer and the Customer shall not assign, subcontract or deal with any right or obligation under this Agreement to any person.
22.12 Numerix may at any time:
22.12.1 assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Agreement. For clarity, the Customer shall provide Numerix with all assistance reasonably requested by Numerix to ensure that Numerix takes full benefit of this Section; and/or
22.12.2 sub-contract any of its obligations under the Agreement provided that it remains responsible for the acts or omissions of the subcontractors as if they were acts or omissions of Numerix.
22.13 The parties do not intend that any other party other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms. The rights of the parties to rescind or vary this Agreement is not subject to the consent of any other person.
22.14 The rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
22.15 The Agreement shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to it any documentation submitted by the Customer, or in any correspondence or elsewhere or implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by a director or other authorized representative of both parties.
22.16.1 any terms contained within a Third Party Agreement that impact upon rights or obligations under the Agreement;
22.16.2 any Special Conditions in an Order Form;
22.16.3 the Legal Terms (including any documents incorporated by reference); and
22.16.4 any remaining parts of the Order Forms entered into by the parties.
22.17.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, suitably senior representatives of the Customer and of Numerix shall attempt in good faith to resolve the Dispute;
22.17.2 if such representatives are for any reason unable to resolve the Dispute within 10 days of service of the Dispute Notice, the Dispute shall be referred to the Chief Executive Officer of the Customer and Chief Executive Officer of Numerix (or their appointed deputies) who shall attempt in good faith to resolve it; and
22.17.3 if for any reason they are unable to resolve the Dispute within 10 days of it being referred to them, the matter shall be referred to in the courts in accordance with Section 22.19, provided that nothing shall prevent Numerix from commencing or continuing court proceedings in relation to any Dispute where Numerix considers it is reasonable to do so despite not completing the process set out in this Section 22.17.
22.18 This 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 the State of New York, U.S.A., excluding its conflicts of law principles.